R v KHY

[2025] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v KHY

[2025] SADC 111

Reasons for Ruling of her Honour Judge Matteo 

3 September 2025

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN

The defendant is charged with the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The Director of Public Prosecutions applies for orders pursuant to s 13BA(1) of the Evidence Act 1929 (SA) that the evidence of the child complainant be admitted at the defendant's trial in the form of two 'prescribed interviews' conducted on separate occasions. The defendant seeks exclusion of the prescribed interviews on the grounds of asserted police non-compliance with Part 17 Division 3 of the Summary Offences Act 1953 (SA). The admission of the second prescribed interview in time is effectively contingent upon the admission of the first prescribed interview.

The first prescribed interview was conducted at the complainant's school by a police officer who had completed an 'Interagency Practice in Child Protection' course and was recorded on a portable video camera. The police officer engaged in an amount of conversation with the child prior to activating the camera, about which she had no notes and limited recollection. After the recording ceased, the police officer engaged in further conversation with the child, including on substantive topics which related to the investigation of the defendant.

At a time after the first prescribed interview, the police officer became aware that the recording had inexplicably become broken up into four electronic files and, further, that the audio and video components of the recording were not synchronised. The recording was provided to a digital forensic expert who aligned the audio and video components to produce a 'transcoded' version of the recording. The source files from which the expert produced the transcoded version of the audio visual record of the interview have since lost sound components. The prosecution seeks to admit the transcoded recording as the complainant's evidence at trial.

Held:

1. The transcoded version of the first prescribed interview is not an audio visual record of the evidence of the complainant and is therefore not admissible under s 13BA(1) of the Evidence Act 1929.

2. If the transcoded version of the first prescribed interview is an audio visual record of the evidence of the complainant:

(a)     The interview was conducted in accordance with the Summary Offences Regulations 2016 recording requirements to include details of breaks;

(b)     The interview was conducted by a prescribed interviewer;

(c)     The interview was conducted in accordance with the Summary Offences Regulations 2016 prescribed requirements so far as the statement for the most part not being elicited by use of leading questions;

(d) The interview is inadmissible as the prescribed interviewer failed to comply with Part 17 Division 3 of the Summary Offences Act 1953 by not recording all conversations which formed part of the complainant's interview as a potential witness in the investigation of a serious offence against the person, as required by s 74EB. The interests of justice do not require the admission of the evidence despite this non-compliance.

3. The Director of Public Prosecutions' application for an order admitting the first prescribed interview is refused.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13A(1), 13BA, 13BA(1), 13BA(3); Summary Offences Act 1953 (SA) pt 17, div 3, ss 74C, 74E, 74EA, 74EB, 74EB(b), 74EB(c), 74EC, 74EC(1), 74D; Police Act 1998 (SA) s 11(1); Summary Offences Regulations 2016 (SA) regs 20(1), 20(1)(c)(i), 21, 23(1), 23(1)(a)(i), 23(1)(a)(ii), 23(1)(a)(iii), 23(7), 23(7)(a), pt 4; Legislation Interpretation Act 2021 (SA) s 11(3); Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA), referred to.
R v Cronin (2018) 131 SASR 111; Question of Law Reserved (No 1 of 2021) [2021] SASCA 148; Brown (A Pseudonym) v The King [2025] SASCA 40; Steen v The Queen SASCFC [2020] 60; Lindsay v The King; Rankine v The King; Woods v The King [2022] SASCA 138; R v G, BA [2022] SADC 93; R v King & Pitson (No 2) (1998) 199 LSJS 112; R v Pedler [2017] SASCFC 108; Sears v The Queen (2020) 137 SASR 219; Cosenza v State of South Australia [2024] SASC 97, considered.

R v KHY
[2025] SADC 111

Introduction

1. The defendant is charged with the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The defendant has elected to be tried by judge alone.

2. The particulars of the offence are that between 2019 and 2022 at certain places the defendant maintained an unlawful sexual relationship with the complainant, JY, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely, touching her breasts, thighs and genital area on more than one occasion and watching pornography in her presence.

3. JY was born on 5 October 2011 and is now 13 years old.

4. The Director of Public Prosecutions applies for orders pursuant to s 13BA(1) of the Evidence Act 1929 (SA) (‘Evidence Act’) that the evidence of JY be admitted at the defendant’s trial in the form of audio visual records of interviews conducted with JY on 20 October 2023 and 2 May 2024 (‘the prescribed interviews’).[1]

   [1]     Interlocutory application for admission of audiovisual record filed 3 October 2024 (FDN 11).

5. It suffices for the purposes of this ruling to summarise that in the course of the first prescribed interview with JY conducted on 20 October 2023 (‘the first prescribed interview’), JY provided an account of alleged sexual touching by the defendant in situations at her grandfather’s house and at the defendant’s house, and of disclosures which she made to family members about the defendant’s conduct. The second prescribed interview conducted on 2 May 2024 (‘the second prescribed interview’) was almost entirely referable to the first interview and involved JY elaborating upon aspects of her earlier account, including by drawing diagrams of relevant locations. The prosecution’s application for orders for admission of the prescribed interviews is to facilitate JY’s evidence being admitted at the defendant’s trial in that form.

6. Section 13BA(1) of the Evidence Act relevantly provides that, subject to the section, in the trial of a charge of an offence, the court may order that the evidence of a witness be admitted in the form of an audio visual record. Section 13BA(3) sets the conditions under which an audio visual record of the evidence of a witness may be admitted, which include if the recording has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) (‘SO Act’) and the court is satisfied of further enumerated matters relating to the capacity of the witness to give sworn or unsworn evidence at the time the recording was made, the defendant having been given a reasonable opportunity to view the recording and the availability of the witness to give further evidence if required.[2]

   [2] Evidence Act, s 13BA(3)(b)(i)-(iii).

7. Part 17 Division 3 of the SO Act is concerned with the recording of interviews with certain vulnerable witnesses, which include potential witnesses of or under the age of 14 years and alleged victims of child sexual offences.[3] An interview with a vulnerable witness who is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person must be conducted according to the following requirements which are set in s 74EB of the SO Act:

   (a)an audio visual recording of the interview must be made in accordance with the regulations;

   (b)the interview must be conducted by a prescribed interviewer;

   (c)the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent.

   [3] SO Act, s 74EA(1)-(1a).

8. The applicable regulations are contained in Part 4 of the Summary Offences Regulations 2016 (‘SO Regulations’).

9. It will be necessary to return to the relevant provisions of the Evidence Act and the SO Act, and to the details of the SO Regulations.

10. In relation to the first prescribed interview, the prosecution seeks to have admitted an adjusted version of the original recording which was produced by a digital forensic expert aligning the audio and video components which were discovered to have become desynchronised on the original recording. Later in this ruling, the recording sought to be admitted by the prosecution is referred to as the ‘transcoded’ version of the interview.

11. The defendant seeks orders that the prescribed interviews be excluded from evidence on the grounds that they were not made pursuant to, or in compliance with, Part 17 Division 3 of the SO Act and are therefore inadmissible.[4] In relation to the first prescribed interview, the defendant argues preliminarily that the recording sought to be admitted by the prosecution, which has been subject to post-recording electronic intervention, does not constitute an audio visual record of the evidence of the witness, and is therefore not recorded evidence subject to admission under s 13BA of the Evidence Act.

    [4]     Amended interlocutory application filed 30 April 2025 (FDN 51).

12. The parties proceeded in effective agreement that the admissibility of the second prescribed interview is contingent upon the admission of the first. The second prescribed interview is inextricably linked to the first prescribed interview and, as I understand the position, is not sought to be admitted standing alone.

13. A voir dire hearing was conducted at which the audio visual recordings sought to be admitted by the prosecution were tendered and evidence was led about the circumstances in which the prescribed interviews with JY were conducted. The police officer who conducted the prescribed interviews with JY (‘the prescribed interviewer’) gave evidence and was cross-examined. The prosecution also tendered a report of the digital forensic expert who produced the adjusted version of the first prescribed interview and an affidavit of the Commissioner of Police speaking to the prescribed interviewer’s status as such.

14. For the reasons that follow, I refuse the Director’s application for an order admitting the evidence of JY in the form of an audio visual record of interview conducted on 20 October 2023. I am not satisfied that the adjusted audio visual record which the Director seeks to have admitted constitutes an audio visual record of the evidence of a witness which may be admitted pursuant to s13BA(1) of the Evidence Act. If I am incorrect in arriving at that conclusion, I would nevertheless decline to admit the audio visual record of the evidence on account of the prescribed interviewer’s non-compliance with the obligation to record all conversations with the witness in relation to the investigation the subject of the interview.

    Evidence on the voir dire

    Brevet Sergeant Kristy Whyatt

15. The prescribed interviews of JY were conducted by a police officer, Brevet Sergeant Kristy Whyatt (‘BS Whyatt’), who I gather is also the investigating officer in this matter. The prosecution placed evidence of BS Whyatt’s conduct of the prescribed interviews with JY before the court in the form of affidavits of BS Whyatt,[5] brief examination in chief and the recordings themselves.[6] BS Whyatt was cross-examined by Senior Counsel for the defendant.

    Brevet Sergeant Whyatt’s training and experience

    [5]     Exhibits VDP1 (affidavit dated 1 February 2024), VPD2 (affidavit dated 6 May 2024) and VDP3 (affidavit dated 9 April 2025).

    [6]     Exhibit VDP5 (USB).

16. BS Whyatt is currently stationed at the Southern District Child and Family Investigation Section, where she has worked for the past eight to nine months. Prior to this posting, she worked at the Western District Child and Family Investigation Section. As part of her duties, she undertakes interviews of vulnerable witnesses.

17. In 2012, BS Whyatt undertook and completed a two-week ‘interagency child protection course’[7] conducted by SAPOL and TAFE, the curriculum for which is set out in documents appended to her affidavit made on 9 April 2025.[8] Having completed that course, BS Whyatt conducted interviews with vulnerable witnesses.

    [7]     T29.

    [8]     Exhibit VDP3.

18. I interpolate here that the records attached to BS Whyatt’s affidavit describe the course as ‘Interagency Practice in Child Protection’.[9]

    [9]     Exhibit VDP3, Annexures B and C.

19. Under cross-examination, BS Whyatt was unable to say whether her training had included details of the requirements of the SO Act or Regulations. Since 2021, she has undertaken a non-compulsory refresher course relating to the conduct of ‘the interview itself’,[10] which did not deal with obligations under the applicable legislation. BS Whyatt understands that there is an obligation to announce everyone in the interview because the entire interview room is not visible on camera. She understands that an interviewer is not supposed to ask leading questions, because children are more easily led and so, she explained, the idea is to ask open questions to allow them to provide the answer rather than the interviewer guiding them in a direction.

    [10]   T41.

20. In both prescribed interviews, BS Whyatt adopted a questioning technique which consisted of summarising and putting back JY’s previous answers which, she said, was intended to give JY an opportunity to correct her if she had the account wrong. BS Whyatt said that she did not consider such questions to be leading questions, however, she conceded the possibility of a child agreeing with what was put back irrespective of accuracy due to the environment of the interview.

    First prescribed interview with JY on 20 October 2023

21. On 20 October 2023, BS Whyatt attended at Cowandilla Primary School in response to a written CARL[11] notification made by the school concerning an allegation of sexual abuse and received by her on 18 October 2023. This was BS Whyatt’s reason for conducting the first prescribed interview with JY. Implicit in BS Whyatt’s evidence, JY had made a disclosure to the wellbeing officer at her school.

    [11]   Child Abuse Report Line.

22. In cross-examination, BS Whyatt agreed that there was no urgency in having a conversation with JY insofar as the information which she had suggested that there had not been any alleged offending in that year, however, she said that there was urgency on account of the information suggesting that JY was still being exposed to the alleged offender and she was unsure how protective JY’s parents were as the information suggested that they were aware of the alleged offending and had not taken steps to report it. It was BS Whyatt’s understanding that JY’s parents had not been informed of JY’s disclosure to the school.

23. BS Whyatt said that she wished to speak to JY to establish how protective her parents were and if there were offences requiring further investigation. She held a concern that JY’s parents might not let JY speak to her and made a decision to conduct a prescribed interview with the child without informing the child’s parents of her intention to do so. She made this decision in the knowledge that the prescribed interview would be available as JY’s evidence in a prosecution.

24. BS Whyatt conducted an interview with JY in a room at the school, which she video recorded. The recorded interview commenced at 9.43am and concluded at 10.25am. The only persons visible in the recording are BS Whyatt and JY. BS Whyatt gave evidence that only she and JY were in the room at the time of the interview.

    Conversation prior to recording

25. BS Whyatt was cross-examined extensively as to whether she had any conversation with JY prior to the commencement of the recorded interview. She initially stated that there was no conversation with JY about the offending. She said that JY was brought into the room and they met each other, but there was ‘no conversation about the offending until the interview’.[12]

    [12]   T62.

26. When BS Whyatt arrived at the school, JY was in her class. JY was brought into the room where BS Whyatt was (where the recorded interview was conducted) by a teacher.[13] BS Whyatt first saw JY when JY was brought into the room. In what I took to be a reference to her handwritten notes, BS Whyatt stated, ‘9.30 prescribed interview and 9.43 interview commenced.’[14]

    [13]   Described later in BS Whyatt’s evidence as the wellbeing officer: T67.

    [14]   T63.

27. The inference from BS Whyatt’s evidence is that there was a period of 13 minutes before the recording commenced in which there was opportunity for conversation with JY which is unrecorded.

28. BS Whyatt said that, prior to the recorded portion of the interview, she explained that they would do an interview that would be recorded and they would talk about the things that JY had already spoken to the school about. BS Whyatt was unsure whether she told JY why they were doing an interview as she could not remember the conversation. BS Whyatt had no note and no record of what was discussed prior to the recording.

29. BS Whyatt was unable to recall the conversation which she had with JY prior to the commencement of the recording about what the interview was to be about, and she had no note of it. BS Whyatt gave evidence of the gist of this part of the conversation to the effect that she said it was in relation to ‘stuff [JY] had previously told the school’.[15] She said that she just explained to JY that she was there because of the things (she was unable to recall whether she said ‘things’ or ‘stuff’) JY had reported to the school, that she needed to find out a bit more detail and if JY was willing to do an interview with her about that to discuss it. She doubted that she would have used the expression ‘allegations of sexual abuse’ to a child, but did not recall the exact words used.

    [15]   T66.

30. BS Whyatt was asked whether she gave JY the opportunity to have a support person present, and said that she did so. She said that the conversation was simply, “You could have someone sit in with you if you felt more comfortable”, and that this was ‘just [her] initial conversation with JY before they started the official interview’.[16] She had no note and no record of this part of the conversation and therefore could not recount the exact words used. The effect of the words, she said, was, “We’d like to do an interview that would be recorded. You’re welcome to have someone sit in with you if you feel more comfortable, but if you’re comfortable just with me, then we can just do it, the two of us in the room.”[17]

    [16]   T65.

    [17]   T65.

31. BS Whyatt went on to say that she said that JY could have her wellbeing officer or someone like her wellbeing officer sit in with her if she felt more comfortable, but she could not recall her exact words. She may have said counsellor or someone else in the school. BS Whyatt said that she has done ‘a few interviews’ and ‘generally’ she would say the interviewee was welcome to have someone sit in with them and would suggest the wellbeing officer or ‘someone like that’ if they wanted to have someone in.[18] She did not explain to JY ‘as such’ the purpose of someone sitting in.[19]

    [18]   T67.

    [19]   T67.

32. BS Whyatt believed, based on her practice, that the school staff member remained in the room until JY said that she was happy to do the interview with just her, but could not specifically recall whether that was the case.[20]

    [20]   T69.

33. BS Whyatt was cross-examined about whether she gave consideration to the matter of whether JY required a prescribed companion[21] while being interviewed. Her assessment was that she did not consider that JY required a companion because JY was able to communicate quite well, appeared reasonably confident, agreed that she was happy to speak with BS Whyatt on her own and did not request to have anyone sit in with her. BS Whyatt did not record or note her conversations with JY leading her to make this assessment.

    Conversation post-recording

    [21]   SO Regulations, reg 21.

1. BS Whyatt was cross-examined about conversations which she had with JY after the video recorder was deactivated.

2. In the course of the first prescribed interview, one of the persons to whom JY claims to have made a disclosure about the alleged offending was a cousin, K. BS Whyatt initially stated in answer to a question in cross-examination that she did not have another conversation with JY about K. After being taken to a handwritten note about K being a possible victim and possibly the defendant’s niece, BS Whyatt agreed that was something JY spoke to her about. BS Whyatt said that she ‘must have just asked JY for those details after the interview to do some follow-up’.[22]

   [22]   T48.

3. BS Whyatt was taken to a further note apparently relating to JY’s parents’ work schedules and movements, in relation to which she said ‘that conversation’ occurred immediately after the interview after she had switched off the video.[23]

   [23]   T48.

4. BS Whyatt was taken to yet another note relating to the defendant not working and his wife’s employment.

5. BS Whyatt explained, in what I took to be a reference to all of those post-interview notes, that she was explaining that she needed to do some follow-up with JY’s parents and when would be a suitable time to go and see them, and in relation to the possibility of having to follow up details with the defendant and K. She said that JY gave her those details ‘which was only those lines’.[24] BS Whyatt was unable to recall the questions she asked JY to obtain that information.

   [24]   T48.

6. In the course of the first prescribed interview, in the context of talking about a disclosure to her parents in 2022, JY stated that they told her to keep her distance from the defendant and they stopped attending her grandfather’s house as frequently.[25]

   [25]   Exhibit P5A (transcript) pp.15, 18.

7. In cross-examination BS Whyatt was asked whether she had any conversation with JY about any fears that JY had, to which she replied ‘not specifically’ other than what JY had said in the interview that ‘her plan with mum and dad was not to be in the room with [the defendant] on her own’.[26] BS Whyatt said that there was no further conversation on this topic from the interview with JY.

   [26]   T49.

8. BS Whyatt was then taken to an affidavit which she made on 7 January 2024, in which she deposed as follows:[27]

   After the interview concluded I spoke to the protected person who advised that she is in fear of the defendant. She states she avoids the defendant when at family functions and makes sure never to be in a room on her own with him. She also makes sure one of her parents are now in the room with her whenever he is around for fear of what he may do.

   [27]   T49-50.

9. BS Whyatt did not conduct a prescribed interview of JY in relation to those matters and agreed that they were not matters which she noted in her notebook. Consequently she agreed that she was unable to say what questions she asked, and what answers JY made, on this topic. BS Whyatt agreed that in conversing with JY on this topic of her fear and relationship with the defendant, she was asking JY questions in relation to her investigation.

   The audio visual recording of the interview

10. The prosecution tendered a USB containing the audio visual recordings of the prescribed interviews[28] in the course of BS Whyatt’s evidence in chief. When the USB was inserted into the courtroom equipment to be played, the first interview presented in two folders,[29] one titled ‘Source’ and the other titled ‘Transcoded’. The prosecutor informed the court that the transcoded file was to be played.[30] The prosecutor had earlier informed the court that the first interview consisted of ‘four separate video clips that comprise the one interview’.[31] The first three clips (or files) were played in sequence and without difficulty. No objection was taken to this course, nor was the court initially alerted to any issue concerning the nature, provenance or quality of the recording.

    [28]   Exhibit VDP5.

    [29]   Referred to in the hearing as ‘files’: T36.

    [30]   T36.

    [31]   T35.

11. During the playing of the fourth file in the course of BS Whyatt’s evidence in chief, I remarked to counsel about what I observed to be a disconnect between the audio and visual components of the recording, in relation to which I was informed by the prosecutor that:[32]

    The recording was the subject of some intervention and amelioration and that is why there’s the transcoded file on the USB. The original file had the two audio and video not running together. This is the best quality that was able to be achieved with professional intervention.

    [32]   T37.

12. The recording was played through to completion.

13. In evidence in chief, BS Whyatt said that she video recorded the 20 October 2023 interview with JY and agreed in answer to a leading question that at a later time she had copied the recording onto a CD or different media.[33] As to the recording being in four parts, she said that there were no breaks during the course of the interview and that it flowed from beginning to end without any breaks.[34]

    [33]   T30.

    [34]   T37.

14. In cross-examination on this topic, BS Whyatt said that the ‘original’ had four separate files.[35] She said that the camera she used ‘just broke up the full length of the audio and video into four segments for some reason’, but she was unsure why.[36] Although the video has breaks, she disagreed that they represented ‘four separate videos’ that had been adjusted to make a continuous video.[37]

    [35]   T42-43.

    [36]   T43.

    [37]   T43.

15. With respect to her checking of the recording equipment which she used to conduct the first prescribed interview, BS Whyatt said that when she got the recording device (camera), she made sure the battery was charged ‘and that sort of thing’, but that was all she did.[38] However, she did not conduct any check or trial to see if it recorded correctly before she commenced recording the interview with JY. BS Whyatt agreed that there are dedicated recording facilities for prescribed interviews at the SAPOL Victim Management Unit, which she could have made a booking to use as there was no urgency in conducting the interview with JY when she did.

    The ‘transcoded’ version of the audio visual recording

    [38]   T76.

16. In cross-examination, BS Whyatt said in answer to specific questioning on the topic that the original recording ‘had an issue with the words or the mouths going slightly separate to the audio so they had to get that sent off to a professional who was able to adjust and fix that’.[39] At the time of recording, she was unaware of the issue; she only became aware of it on viewing. BS Whyatt said that her understanding was that the only thing that was altered was the issue with the words and mouthing not being in sync. BS Whyatt agreed that the lack of synchronisation in the original recording was quite dramatic.[40]

    [39]   T42.

    [40]   T44.

17. The voir dire proceeded on the basis of the original recording and the adjusted (‘transcoded’) version both appearing on the USB exhibit, VDP5.[41] As will be seen, an issue later arose in relation to what the original/source and transcoded versions of the interview on VDP5 actually represented.

    Second prescribed interview with JY on 2 May 2024

    [41]   T42.

18. On 2 May 2024, BS Whyatt conducted a further interview with JY, this time in an interview room at the Port Adelaide police station. This interview came about as a result of a request from the prosecution to clarify certain points from the previous interview. BS Whyatt said that she made arrangements with JY’s father for JY to be brought in to see her.

19. BS Whyatt said that it was just she and JY present during this interview, and that the interview was video recorded on a hand-held video camera because, although there was video equipment set up in the interview room, she thinks that something was wrong with the cameras.

20. BS Whyatt said that prior to commencing this prescribed interview, she only had an introductory ‘hello-type’ conversation with JY.[42] She stated that all discussions with JY regarding ‘what she wanted to speak to her about’ were recorded on video.[43] BS Whyatt said that there were no breaks in the course of the interview.

    Accompanying JY at proofings with the prosecution

    [42]   T33-34, 39.

    [43]   T34.

21. BS Whyatt was cross-examined about accompanying JY to the offices of the Director of Public Prosecutions (‘DPP’) for meetings and proofings on 29 July 2024 and 24 March 2025. The first such meeting was described as a ‘meet and greet’.[44]

    [44]   T77-78.

22. On 24 March 2025, BS Whyatt was present for a meeting between JY, both of her parents, a prosecutor and a witness assistance officer from the office of the DPP. She said that the meeting related to the reticence of JY’s parents to give evidence and was ‘an opportunity for them to explain the importance of them coming to court as witnesses’.[45] The meeting lasted about one hour and comprised of a conversation of all persons present together, followed by JY being spoken to on her own to confirm that she still wished to go ahead. The contents of JY’s prescribed interviews were not discussed. BS Whyatt had no notes about the parents’ reticence or what was discussed with JY.

    Statement taken from JY

    [45]   T79.

23. BS Whyatt gave evidence about a further conversation which she had with JY on 18 February 2025 which was not the subject of an audio visually recorded interview which involved taking a witness statement from JY on the topic of a text message which JY had sent to her mother in connection with the alleged offending, which had been mentioned by JY in the first prescribed interview. BS Whyatt agreed that she was endeavouring to obtain any messages that might reflect what JY had said about that.

24. BS Whyatt said that this conversation and statement-taking came about through arrangements made via email with JY’s father.

25. BS Whyatt took the statement from JY at her family home on a mobile rugged tablet, and had JY sign it electronically on that device. There was no impediment to her taking a recording device and no reason for her not to have done so.

26. On the same occasion, BS Whyatt took a statement from JY’s mother, I gather on the same topic, while JY was present in the same room. JY’s mother had been present in the same room when BS Whyatt took the statement from JY.

27. The day after BS Whyatt had given the evidence on this topic in cross‑examination, she was asked whether she had discussed her evidence with anyone. She said that she spoke with a colleague who works in the same section, who she described as ‘experienced-ish’, about what defence counsel had asked her in cross-examination.[46] In speaking to this colleague, BS Whyatt said that she identified a number of errors which she had made, being that she had taken a statement from JY on 18 February 2025 when she should have undertaken a further prescribed interview, and that she had utilised JY’s father as an interpreter in taking the statement from JY’s mother on the same occasion, which was a ‘conflict of interest’ as he was a potential witness.[47]

    [46]   T71-72.

    [47]   T72-73.

28. BS Whyatt also acknowledged that she had sent a text message to the prosecutor that morning seeking to have a chat, which message was not responded to. BS Whyatt stated that she did not realise that she was not permitted to discuss her evidence with anybody while under cross-examination. She said that the ‘penny dropped’ when the prosecutor told her that morning that she could not talk to her. With respect to speaking to her colleague, BS Whyatt said that she did not realise that the prohibition on discussing her evidence in cross-examination extended to ‘someone not involved in the matter’.[48]

    [48]   T73.

    Dr Matthew Sorell

29. The prosecution tendered a report of Dr Matthew Sorell,[49] to whom the original recording of the first prescribed interview was sent for adjustment. He was not called to give evidence. Dr Sorell is the principal consultant and chief technology officer at Digital Forensic Sciences Pty Ltd. He is also a senior lecturer at the University of Adelaide's School of Electrical and Electronic Engineering. Dr Sorell has experience in multimedia and video systems engineering. On 16 April 2024, Dr Sorell met with a police officer and received four[50] video files, which are described as follows:[51]

    [49]   Exhibit VDP8 (expert report of Dr Matthew Sorell dated 16 April 2024).

    [50]   Dr Sorell’s report states that he received five video files (VDP8, [1.4]), which I assume to be a typographical error as there are four files listed.

    [51]   Exhibit VDP8 (expert report of Dr Matthew Sorell dated 16 April 2024), [1.4].

Source	Today at 10:20 AM	--	Folder
[Y] 1.mp4	20 Oct 2023 at 2.11 PM	106.2 MB	MPEG-4 movie
[Y] 2.mp4	20 Oct 2023 at 2.17 PM	93 MB	MPEG-4 movie
[Y] 3.mp4	20 Oct 2023 at 2.34 PM	92.3 MB	MPEG-4 movie
[Y] 4.mp4	24 Oct 2023 at 11:41 AM	23.7 MB	MPEG-4 movie

1. The police enquiry which preceded the provision of the video files to Dr Sorell related to a prescribed interview video ‘for which the visual and audio components appeared to lose synchronisation’.[52] Dr Sorell ‘transcoded’ the video files in what I understand to have been an effort to resynchronise the visual and audio components by means which he explains as follows:[53]

   Initial ad hoc analysis suggested that both the video and audio streams were intact and ran linearly (that is, there are no gaps or variable speeds).

   There are multiple techniques that could be applied to resynchronise the video and audio. I tested the most straightforward process at my disposal, involving minimal intervention, by transcoding the video using the software tool HandBrake. I found that this process correctly aligned the audio and video across all files.

   I therefore transcoded the supplied video files using HandBrake, which has aligned the video and audio streams. These were subsequently supplied on a USB memory labelled “[Y] DFSA 16/4/24”, and contains also the supplied source video files. These were delivered to BIRD at 11:00 on 16 April 2024.

   [52]   Exhibit VDP8 (expert report of Dr Matthew Sorell dated 16 April 2024), [1.3].

   [53]   Exhibit VDP8 (expert report of Dr Matthew Sorell dated 16 April 2024), [1.5]-[1.7].

   Commissioner Grantley Stevens and SAPOL general orders

2. The prosecution also tendered an affidavit of Grantley Stevens, the Commissioner of South Australia Police (‘Commissioner Stevens’), concerning the status of the interagency child protection course undertaken by BS Whyatt by way of a training course in conducting interviews with vulnerable witnesses.[54] In summary, Commissioner Stevens deposes that the Interagency Practice in Child Protection training course undertaken by BS Whyatt in 2012 is a training course in conducting interviews with vulnerable witnesses approved by him for the purpose of reg 20(1)(c)(i) of the SO Regulations. It will be necessary to return to the detail of the affidavit of Commissioner Stevens.

   [54]   Exhibit VDP11 (affidavit of Grantley John Stevens made on 30 May 2025).

3. Multiple versions of the SAPOL General Order relating to interviewing suspects and vulnerable witnesses (issued on 21 September 2022) were admitted into evidence, which differed as to the extent of redacted material.[55]

   A late issue arises in relation to the original recording and ‘transcoded’ versions of the first prescribed interview

   [55]   Exhibits VDP4, VDD7 and VDP9.

4. The prosecution’s application for an order pursuant to s 13BA(1) of the Evidence Act that the evidence of JY be admitted at the defendant’s trial in the form of an audio visual record of an interview conducted on 20 October 2023 relates to the transcoded version of the original interview produced by Dr Sorell. The prosecution does not seek to have the original recording admitted as the evidence of JY. This was made clear on the hearing of the application.

5. At the conclusion of the parties’ submissions on the voir dire (conducted between 25 May 2025 and 30 May 2025), there existed a threshold issue for determination, namely, whether the transcoded version is an audio visual record of the evidence of JY such that it is amenable to admission under s 13BA(1) of the Evidence Act.

6. The defence submits that the intervention by Dr Sorell to produce the transcoded version of the first prescribed interview has resulted in the creation of something which is not an audio visual recording of the interview between BS Whyatt and JY. At essence, the argument is that the intervention has altered the fundamental character of that which constituted the original audio visual recording made by BS Whyatt such that the transcoded version does not meet the description of an audio visual record of the interview with JY (made at the time of that interview). In other words, by its very nature, the transcoded version of the interview is a conversion of the original recording, not a faithful reproduction or copy of it. The defence argues that, as an intervention has occurred to produce the transcoded version which is sought to be admitted as the witness’s evidence, the court’s ability to properly assess the demeanour of the witness is compromised because the final product is not the actual simultaneous recording of the witness’s verbal and physical responses to being asked questions.

7. A further, interconnected facet of the defence submission is that the resultant recording of the interview being in four electronic parts, which formed the foundational ‘source’ material for Dr Sorell’s corrective intervention, means that the record which the prosecution seeks to have admitted as the evidence of JY cannot meet the description of an audio visual record of her interview because the electronic breaks which have resulted in the four parts constitute multiple separate recordings. A vice of this result is that the court is reliant upon the interviewing police officer’s evidence in order to be satisfied that there were no breaks in the recording within the context of a scheme which requires the details of any breaks to be included in the recording,[56] and thereby objectively demonstrated.

   [56]   SO Regulations, reg 23(1)(a)(iii).

8. The defence also argues that the legislative scheme governing the recording of interviews with vulnerable witnesses for admission into evidence in criminal proceedings does not allow for electronic intervention to ameliorate a compromised recording, which underscores the essentiality of a compliant audio visual recording being made at the time of interview. Underpinning the defence submission is the notion that high obligations of compliance by police exist because of the exceptional course of taking a witness’s evidence outside of a court room.[57]

   [57]   Sears v The Queen (2020) 137 SASR 219 at [28]-[32] (Peek J), and the cases referred to therein.

9. The prosecution contends that a viewing of the four files which constitute the transcoded version of the first interview demonstrates that the files collectively represent a single, sequential interview without breaks of time or activity which is unaccounted for, and that this conclusion is consistent with BS Whyatt’s evidence that an interview without breaks was conducted.

10. The prosecution emphasises that the admissibility provision, s 13BA of the Evidence Act, provides for the admission of an audio visual record, but does not stipulate a requirement for an original recording; likewise, s 74EC of the SO Act is concerned with the admissibility of a recording of an interview without reference to an original.

11. The prosecution submits that a viewing of the transcoded interview reveals that it is an audio visual record of the first prescribed interview, for it contains both the audio and visual components of that event. The prosecution relies upon Dr Sorell’s assertion that the audio and video streams on the source files which he received were intact and ran linearly to establish that the transcoded version which he produced is a faithful derivation from the camera recording of the interview. There is no evidence of anything being added to, or removed from, the original recording by the transcoding process.

1. I was invited by the prosecution to view the entire contents of Exhibit VDP5, the USB containing copies of the original (‘source’) and transcoded versions of the first prescribed interview, with a view to determining that the transcoded version was in effect a faithful record of the original interview. It should be noted that the four electronic parts of the original version of the recording do not have date/time stamps embedded within the footage.

2. Having reserved my ruling, I viewed Exhibit VDP5, in particular the ‘source’ file, with a view to evaluating how it compared to the transcoded version of the interview.

3. The file structure upon opening the USB consisted of two folders, one titled ‘source’ and the other titled ‘transcoded’, each of which contained MP4 video files.

4. Upon viewing the source file contents in my chambers, I was unable to discern any fault with the recording, and advised the parties accordingly. The matter was called back on, and the prosecution was unable to explain the discrepancy between the faultless source material on Exhibit VDP5 and BS Whyatt’s evidence, apparently supported by the report of Dr Sorell, that the original recording of the interview (said to be contained in the source file) was quite dramatically unsynchronised. I permitted the prosecution an opportunity to investigate this issue and to place further evidence before the court with a view to addressing the evidentiary discrepancy.

5. The prosecution subsequently tendered the following further materials: an affidavit of BS Whyatt made on 10 June 2025,[58] an affidavit of police officer Sarah Vanessa Bird made on 10 June 2025,[59] a statement of agreed facts[60] and a USB which contains the source and transcoded files (the subject of VDP5) as provided to SAPOL by Dr Sorell.[61]

   [58]   Exhibit VDP12.

   [59]   Exhibit VDP13.

   [60]   Exhibit VDP14.

   [61]   Exhibit VDP15.

6. The further affidavit materials establish the following:

   1.BS Whyatt recorded the interview conducted with JY on 20 October 2023 on a handheld video camera which contained an SD (Secure Digital) card.[62]

   2.In order to make a copy of the recording on the SD card, upon returning to the Port Adelaide police station, BS Whyatt removed the SD card from the camera and placed it into a multi card reader, which was in turn plugged into her work computer.[63]

   3.BS Whyatt located four files on the SD card which related to the interview (‘that were relevant to [the] interview’) and transferred those files to her work computer desktop. BS Whyatt then copied the data onto two blank DVDs; two discs were required to accommodate the size of the files.  BS Whyatt marked the resultant copies as ‘original’, and booked them into SAPOL exhibit property storage under property item number PE0001 (‘the original discs’).[64]

   4.BS Whyatt made another copy of the discs which she marked as ‘working copy’ (‘the working copy’).[65] BS Whyatt worked off of the working copy, for example to produce a transcript.[66]

   5.On or about 9 April 2024, while reviewing the working copy, BS Whyatt ‘identified an issue with [the] audio/visual recordings, whereby the audio starts pulling away from the visual after playing for a short amount of time.’[67] At about the same time, BS Whyatt became aware of a colleague, Brevet Sergeant Sarah Bird (‘BS Bird’), experiencing a similar issue in an unrelated matter. BS Bird made contact with Dr Sorell regarding the issue.[68]

   6.On 16 April 2024 BS Bird delivered what BS Whyatt assumed to be the/a working copy of the interview conducted with JY on 20 October 2023 to Dr Sorell. Dr Sorell provided ‘another copy of the interview without any errors’, which I take to be the transcoded version.[69]

   7.The SD card from the handheld video camera which BS Whyatt used to record the interview conducted with JY on 20 October 2023 and the four files from the SD card which were transferred to BS Whyatt’s work computer desktop are no longer available.[70]

   [62]   Exhibit VDP12, [2].

   [63]   Exhibit VDP12, [3].

   [64] Exhibit VDP12, [4]-[5].

   [65]   Exhibit VDP12, [5].

   [66]   Exhibit VDP12, [6].

   [67]   Exhibit VDP12, [7].

   [68] Exhibit VDP12, [8]-[9].

   [69]   Exhibit VDP12, [9]-[10]; exhibit VDP13 [8]-[9].

   [70]   Exhibit VDP14 [1]-[2].

7. It appears that BS Whyatt became aware of a problem with the recording of the first prescribed interview with JY when she reviewed the working copy on about 9 April 2024, which she describes as ‘the audio starts pulling away from the visual after playing for a short amount of time’.[71] As I read BS Whyatt’s most recent affidavit, this awareness led to the engagement of Dr Sorell. Forward in time, on 6 June 2025 (after the issue relating to VDP5 was brought to the attention of the parties), BS Whyatt retrieved the original discs from property storage and reviewed them. She describes the outcome of her review of the original discs as follows:[72]

   Upon watching the first video (recording 1) I became aware that the video crashes at about the 1min 36sec mark and does not continue recording. I was not aware of this problem prior to booking the disc onto the police property system.

   I did note however that the other recordings (2, 3 & 4) do contain the original errors identified (audio and video not in sync). However, I also noted that the video needs to be played continuously without any stopping or pausing for the original error to present itself. If the recording is stopped, paused or skipped forward/backward the error doesn’t always occur.

   I also became aware upon reviewing the recordings that the 4^th video was created on the 24^th October 2024 (sic), while the other three videos were created on the 20^th October 2024 (sic)…[73]

   [71] Exhibit VDP12 [7].

   [72]   Exhibit VDP12 [11]-[13].

   [73]   I assume 2024 is a typographical error and that the correct year is 2023.

8. BS Whyatt goes on to proffer an explanation for the different creation dates for the four files related to time pressures.[74]

   [74]   Exhibit VDP12 [13]-[14].

9. BS Whyatt also removed from property storage the USB which contains the source and transcoded files as provided to SAPOL by Dr Sorell, which became exhibit VDP15 on the voir dire. She confirms that it contains her working copy of the interview, being the ‘source’ file component, and the transcoded file produced by Dr Sorell.[75]  BS Whyatt deposes that upon her viewing of the source file, it still exhibited the ‘pulling away’ feature which she had previously observed.

   [75] Exhibit VDP12 [15]; exhibit VDP14 [3].

10. Based upon the evidence, the contents of the USB exhibit VDP15, specifically the source file which was provided to Dr Sorell for rectification, should equate to BS Whyatt’s working copy of the interview conducted with JY on 20 October 2023. If Dr Sorell’s statement is accepted, that file should contain intact video and audio streams with no gaps.

11. The source file component of exhibit VDP15 was played in court. What was visualised and audible is documented in the transcript of the proceedings.[76] Two matters are noteworthy. The first is that the audio and video components presented differently depending upon whether the individual files were played through continuously or whether they were paused, forwarded or reversed. Pausing, forwarding or reversing the recording appeared capable of rectifying the lack of synchronisation between the audio and video components, which was otherwise discernible. There is no evidence before me explaining why this is so. The second noteworthy matter is that, when played through continuously, each of the first three files which are contained in the source folder reached a point at which the audio became initially patchy before the sounds dropped out entirely. The fourth file did not lose sound, however, the visual component was of inferior quality to that in the first three files; prosecuting counsel described it as a ‘blurriness’.[77] Upon my viewing of VDP15, there is an aggregate of about three and a half minutes of sound missing and about six minutes of missing or patchy/compromised sound across 42 minutes of interview.

    Admissibility of the first prescribed interview with JY

    [76]   T246-250.

    [77]   T250.

    Is the transcoded version of the original recording an audio visual record of the evidence of JY?

12. A threshold question for determination is whether the transcoded version of the first prescribed interview is an audio visual record of the evidence of JY such that it is amenable to admission under s 13BA(1) of the Evidence Act. As noted, s 13BA(1) provides that the court may order that the evidence of a witness be admitted in the form of an audio visual record. Section 13BA(3) provides that an audio visual record may be admitted if the recording has been made pursuant to Part 17 Division 3 of the SO Act and the court is satisfied of the further enumerated matters.

13. The terms ‘audio visual record’ and ‘recording’ are not defined in the Evidence Act.

14. The question of what constitutes an audio visual record for the purpose of s 13BA of the Evidence Act was considered by the Court of Criminal Appeal in R v Cronin (2018) 131 SASR 111 (‘Cronin’). The appellant in that case had been convicted of child sexual offences on the basis of the contents of the recording of a prescribed interview with a child complainant which was admitted in his trial pursuant to s 13BA. Although the interview had been conducted in circumstances where it was expected that an audio visual record would be produced, almost immediately after the questioning commenced, the camera slipped, leaving only the top of the child’s head and an expanse of wall visible. The audio quality was nevertheless good.

15. The Court held that the recording did not constitute an audio visual record of the interview and was, therefore, inadmissible.[78]

    [78]   R v Cronin (2018) 131 SASR 111, [2] (Kourakis CJ), [23] (Vanstone J), [40] (Nicholson J).

16. Kourakis CJ approached the issue of what constitutes an audio visual record of an interview with a witness by emphasising the requirement for both audio and video components, not one or the other:[79]

    An audio‑visual record of an interview of a potential witness, in anticipation of its use as a substitute for the in-court testimony of that witness, must include both the ‘audio’ record of the spoken words and the ‘video’ record of the witness speaking those words.  The ‘video’ without the spoken word would not be admissible.  Nor would a purely audio record be admissible.  There can be no distinction between records which are only video or only audio, and those records in which there is both a ‘video’ and an ‘audio’ record, but only one of them is a record of the interview.

    [79]   R v Cronin (2018) 131 SASR 111, [3] (Kourakis CJ).

17. Vanstone J, with whom Nicholson J agreed,[80] determined the question of what constitutes an ‘audio visual record of the evidence of a witness’ (s 13BA(3)) by reference to the words themselves and the statutory context in which they appear, concluding that the requirement for simultaneity between the audio and video components of a recording is significant:[81]

    [20] In order to understand the meaning which Parliament intended the expression audio visual record to carry, it is necessary to examine the text itself and the context in which the expression is used. The expression used in the Summary Offences Act in relation to recorded interviews with potential witnesses is “an audio visual recording of the interview”: s 74EB. Section 13BA of the Evidence Act refers to “the evidence of a witness [being] admitted in the form of an audio visual record”.

    [21]   It is plainly envisaged that the recording will largely take the place of viva voce evidence by the witness. As counsel for the appellant put it, it will become the evidence of the witness. In those circumstances the visual component contemplated by Parliament must surely be vision of the witness, rather than of a wall. If the tribunal is not to have the benefit of the witness giving evidence in the court room, then it would be expected that what is seen in the recording has some of the important features of evidence given in person.

    [22]   Even without this context, the import of the expression is clear. The Macquarie Dictionary (Macquarie Library Pty Ltd, 1982) gives the following meaning to the words:

    audiovisual adj. involving or directed simultaneously at the faculties of seeing and hearing.

    The inclusion in this definition of the concept of simultaneity is significant. What is heard must also be seen.

    [80] Nicholson J also agreed with the observations of Kourakis CJ: [40].

    [81]   R v Cronin (2018) 131 SASR 111, [20]-[22] (Vanstone J).

18. The defence makes the point that BS Whyatt’s working copy of the interview which she conducted with JY on 20 October 2023, being the ‘source’ material provided to Dr Sorell, is the third copy of the recording of the interview, it having been removed from the SD card, and then from BS Whyatt’s desktop, all the while attended by an unexplained break-up in the recording which has resulted in four electronic files. The point, as I understand it, is not that a true copy cannot be admitted as a record of an interview under s 13BA of the Evidence Act, but rather that what is sought to be admitted here in the form of the transcoded interview is based upon source material which is demonstrably corrupted and lacking in strict provenance due to an inability to interrogate or evaluate the true original. The creation of the four files was unintended and unexpected, and it is unexplained. The SD card and the desktop copy are no longer available. The original copy ‘crashes’ at the one minute and 36 second mark and did not continue recording. And ultimately the working copy, which is said to form the basis of the transcoded version of the interview which is sought to be admitted into evidence, is completely missing sound in parts.

19. It is a curiosity to say the least that Dr Sorell has produced a corrected version of the first prescribed interview from source material which, in the form in which it is before me, was either not requiring of rectification (exhibit VDP5) or which lacks portions of audio (exhibit VDP15). Whether the phenomenon of pausing, forwarding or reversing the files concerned apparently rectifying the lack of synchronisation is or may be explicable of these discrepancies is not the subject of any evidence before me. As I have already noted, on BS Whyatt’s initial review of the recording, the audio and video were dramatically out of sync, and that is certainly discernible when one views the source folder material when the files are played continuously. It stands to reason that Dr Sorell was presented with material which was not synchronised in order for it to require, and be amenable to, resynchronisation.

20. I accept the evidence of BS Whyatt that the transcoded version of the interview is faithful to what occurred in her interview with JY, and I accept that Dr Sorell’s intervention involved no removal, addition or substantive changing of material comprising the audio and video components of the recording. The transcoded interview also appears to me to represent a true depiction of that which was being said and done in a real-time situation. These are compelling factors in favour of determining that the transcoded version of the interview is a record of the interview conducted with JY and amenable to admission under s 13BA of the Evidence Act. However, it is not the original record, it is not a duplicate of the original record, and it is the product of electronic intervention which involves something different to mere enhancement.

21. The fact is that because the source material based upon the working copy of the interview lacks a complete sound component and there is no date/time stamp information embedded in the footage, I am unable to undertake in a fulsome way the exercise urged upon me by the prosecution, that is, to review it alongside the transcoded version to satisfy myself that the transcoded version is in effect a faithful reproduction of the original interview in which the audio and video components are properly aligned. On a review of all of the evidence before me, I am simply unable to ascertain what the source file which Dr Sorell transcoded consisted of. It is true that the ‘chain’ from the SD card in the camera to the source file in exhibit VDP15 is established on paper, however, the electronic exhibit lacks sound on one type of viewing or resynchronises on another type of viewing – both are inconsistent with what Dr Sorell had to have worked with. In short, the prosecution has not proven the base material which the expert used to produce the record which the prosecution seeks to have admitted as the evidence of the witness. My evaluation of the transcoded version of the interview as likely a faithful reproduction of that which took place between BS Whyatt and JY does not cure this defect which I regard as fundamental to establishing that the transcoded version is a record of the interview.

22. The fourth file of the transcoded interview still suffers from a lack of audio and video synchronisation which was apparent from my first viewing of it and which BS Whyatt confirms was not rectified.[82] Dr Sorell’s report does not say that he only resynchronised some or part of the files provided to him, or that there was any impediment to him resynchronising the entirety, so it is unclear to me why this is so. At all events, even that which the prosecution seeks to have admitted includes desynchronised audio and visual components. A portion of the transcoded interview therefore lacks simultaneity between the audio and video components which, albeit in the different factual context of Cronin, Vanstone J said is significant. The lack of synchronisation of video and audio in the fourth file does compromise that which is presented in the recording; while an evaluation of the overall situation is possible in that one can attempt to mentally align the audio and video components, which are only out of sync by a matter of between about one and two seconds, that is not an exercise which correlates with the evaluation of a witness giving evidence in the traditional manner. I am inclined to think that if live evidence given by a witness via a closed-circuit television facility exhibited a disconnect between the audio and visual such as is present in the fourth file of JY’s interview in its transcoded form, that the facility would need to be rectified before the witness continued their evidence. The issue with the fourth file is really a compounding one; it does not resolve the question of whether the first three files which have been transcoded from the thrice-removed original recording constitutes an audio visual record of the evidence of the witness, however, it does add an unsatisfactory element to a record which is already technically compromised.

    [82]   T44.

23. I therefore conclude that the transcoded version of the first prescribed interview with JY does not constitute an audio visual record of the evidence of a witness which may be admitted under s 13BA of the Evidence Act.

    Issues relating to the admissibility of the transcoded version if it is an audio visual record of the evidence of JY

24. If I am wrong about the transcoded version of the first prescribed interview not constituting an audio visual record of the evidence of JY, I would nevertheless decline to admit it into evidence for the reason that I consider that the departure from the police obligation to record all conversations which formed part of JY’s interview as a potential witness in the investigation of a serious offence against the person and which it was known may constitute her evidence at a trial involved non-compliance which has resulted in an incomplete record of the interview and I am not satisfied that the interests of justice require the admission of the evidence despite that non-compliance.

25. Given the manner in which the defendant’s application for exclusion of the first prescribed interview was argued, particularly before the emphasis of the hearing shifted to the issue relating to the form of the audio visual recording, and further, in the event that I am mistaken about the transcoded version not constituting an audio visual record, it is necessary for me to record my findings and conclusions regarding BS Whyatt’s conduct of the first prescribed interview, in particular her failure to audio visually record certain conversations which she had with JY.

1. As I have already noted, pursuant to s 13A(1) of the Evidence Act, in the trial of a charge of an offence, the Court may order that the evidence of a witness be admitted in the form of an audio visual record. One of the pre-conditions of admission is that the recording has been made pursuant to Part 17 Division 3 of the SO Act.[83] The further enumerated requirements for the admissibility of such a recording[84] are not in issue in this case.

   [83] Evidence Act, s 13BA(3)(b).

   [84] Evidence Act, s 13BA(3)(b)(i)-(iii).

2. The defence argues that BS Whyatt’s first prescribed interview conducted with JY on 20 October 2023 was not made in compliance with the obligations for interviewing a child of or under the age of 14 years as a potential witness and is, therefore, inadmissible.

3. The defence contends that the first prescribed interview which BS Whyatt conducted with JY was non-compliant with the SO Act and Regulations in the following respects:

   1. That details of any breaks in the interview were not included in the audio visual recording, as required by reg 23(1)(a)(iii).

   2.BS Wyatt is not demonstrated to be a prescribed interviewer as required by s 74EB(c) of the SO Act.

   3. The interview was not conducted wholly in accordance with reg 23(7)(a) as certain statements made by JY were elicited by the use of leading questions.

   4.The recording of the interview was not made pursuant to Part 17 Division 3 of the SO Act insofar as BS Whyatt failed to record parts of her conversation with JY which formed part of an interview with the witness in relation to the investigation of a serious offence against the person.

4. The defence contends that the last asserted failure of compliance renders the interview inadmissible and that this constitutes non-compliance of a magnitude that the interests of justice cannot be served by the admission of the evidence.

   Applicable provisions of SO Act and Regulations

5. It is convenient to set out Part 17 Division 3 of the SO Act in its entirety:

   Division 3—Recording interviews with certain vulnerable witnesses

   74EA—Application and interpretation

   (1)     This Division applies to a person being interviewed as a potential witness who is—

   (a) a child of or under the age of 14 years; or

   (b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.

   (1a)   This Division also applies to a person (not being a person described in subsection (1)) who is being interviewed as the victim of an alleged child sexual offence.

   (2)     In this Division—

   child sexual offence means a sexual offence committed in relation to a person under the age of 18 years;

   serious offence against the person means—

   (a) murder or attempted murder; or

   (b) manslaughter or attempted manslaughter; or

   (c) a sexual offence; or

   (d) —

   (ai) an offence of criminal neglect under section 14 of the Criminal Law Consolidation Act 1935; or

   (i) an offence of stalking and harassment under section 19AA of the Criminal Law Consolidation Act 1935; or

   (ii) an offence of causing serious harm under section 23 of the Criminal Law Consolidation Act 1935; or

   (iia) an offence of causing harm under section 24 of the Criminal Law Consolidation Act 1935; or

   (iii) an offence involving an unlawful threat to kill or endanger life; or

   (iv) an offence involving abduction; or

   (v) an offence involving blackmail; or

   (vi) an attempt to commit, or assault with intent to commit, any of the offences in the preceding subparagraphs; or

   (e) an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or

   (f) an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921;

   sexual offence means—

   (a) rape; or

   (b) compelled sexual manipulation; or

   (c) indecent assault; or

   (d) any offence involving unlawful sexual intercourse or an act of gross indecency; or

   (e) incest; or

   (f) any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or

   (g) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or

   (h) any attempt to commit, or assault with intent to commit, any of the foregoing offences.

   74EB—Obligation to record interviews with certain vulnerable witnesses

   If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows:

   (a)     an audio visual recording of the interview must be made in accordance with the regulations;

   (b)     the interview must be conducted by a prescribed interviewer;

   (c)     the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent.

   74EC—Admissibility of evidence of interview

   (1)     In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed interviewer and a person to whom this Division applies is inadmissible unless—

   (a) the prescribed interviewer complied with this Division in relation to the conduct and recording of the interview; or

   (b) the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non-compliance.

   (1a) If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of any other offence, evidence of the interview may be admissible under section 13BA of the Evidence Act 1929 if—

   (a) an audio visual recording of the interview is made in accordance with the regulations; and

   (b)     the interview is conducted by a prescribed interviewer; and

   (c) the manner in which the interview is conducted meets the prescribed requirements to the prescribed extent.

   (1b)   If a prescribed interviewer's conduct and recording of an interview does not meet the requirements of subsection (1a)(c), the court may nevertheless admit evidence of the interview if satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non-compliance.

   (2)     If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b) or (1b), the court must—

   (a) draw the jury's attention to the non-compliance by the prescribed interviewer; and

   (b)     give an appropriate warning in view of the non-compliance,

   unless the court is of the opinion that the non-compliance was trivial.

6. Section 74C of the SO Act relevantly provides that ‘interview’ includes –

   (a)     a conversation; or

   (b)    part of a conversation; or

   (c)     a series of conversations.

7. ‘Investigating Officer’ means, inter alia, a police officer.

8. Preliminarily, it is the case that s 74EB of the SO Act imposes the following three obligations in relation to the conduct of the interview in order for it to be admissible in proceedings against a defendant:

   1.That an audio visual recording of the interview be made in accordance with the regulations (‘the recording requirements’).[85]

   2.The interview be conducted by a prescribed interviewer (‘the prescribed interviewer requirement’).[86]

   3.The interview be conducted in a manner that meets the prescribed requirements to the prescribed extent (‘the prescribed requirements’).[87]

   [85] SO Act, s 74EB(a).

   [86] SO Act, s 74EB(b).

   [87] SO Act, s 74EB(c).

9. The recording requirements for the purposes of s 74EB(a) of the SO Act are set out in reg 23(1) of the SO Regulations, which provides as follows:

   23—Interviewing vulnerable witnesses

   (1) For the purposes of section 74EB(a) of the Act—

   (a) the following information must be included in an audio visual recording of an interview with a vulnerable witness:

   (i) the date on which the recording was made;

   (ii) the identity of all persons who were present at any time during the interview;

   (iii) details of any breaks in the interview, including the time the break commenced and concluded and (so far as is practicable) the reason for the break; and

   (b) if the vulnerable witness is accompanied during the interview by—

   (i) a prescribed companion; or

   (ii) a prescribed communication assistant, the witness, the companion and the communication assistant (as the case may be) must be visible at all times in the recording; and

   (c) if the vulnerable witness is provided with a prescribed communication device for the purpose of providing communication assistance during the interview, the witness and the communication device must be visible at all times in the recording.

10. Sub-regulations (2)-(6) are concerned with requirements relating to the interviewing of vulnerable witnesses with complex communication needs or who require emotional or other support during an interview. It is not necessary to dwell upon those requirements at this juncture.

11. The prescribed interviewer requirement for the purposes of s 74EB(b) of the SO Act are set out in reg 20(1) of the SO Regulations, which provides as follows:

    20—Prescribed interviewers

    (1) For the purposes of section 74EB(b) of the Act, a prescribed interviewer is—

    (a) a police officer or public sector employee, or a police officer or public sector employee of a class, authorised by the Commissioner or the Minister by written notice to conduct interviews with vulnerable witnesses; or

    (b) a person, or a person of a class, authorised under a law of the Commonwealth or of another State or a Territory to conduct interviews with vulnerable witnesses; or

    (c) a person who has successfully completed a training course in conducting interviews with vulnerable witnesses—

    (i) approved by the Commissioner; or

    (ii) approved by the Minister.

    (2)     In this regulation—

    Minister means the Minister for Health;

    public sector employee has the same meaning as in the Public Sector Act 2009.

12. The prescribed requirements for the purposes of s 74EB(c) of the SO Act are set out in reg 23(7) of the SO Regulations, which provides that the manner in which an interview with a vulnerable witness is conducted will meet the prescribed requirements if:

    (a)     so far as is practicable, any statement made by the vulnerable witness is not elicited by the use of leading questions; and

    (b)     the vulnerable witness appears to understand that he or she must tell the truth; and

    (c)     the interview is conducted in accordance with this regulation.

13. I turn to deal with the defendant’s assertions of non-compliance with the SO Act and Regulations in the first prescribed interview.

    Failure to include details of breaks

14. As I have summarised in the part of this ruling which is concerned with the question of the status of the transcoded version of the recording of the first prescribed interview, the defendant contends that the four electronic parts which constitute the recording are tantamount to breaks in the interview which SO Regulation 23(1)(a) requires be detailed, amounting to non-compliance in this respect. In essence, the prosecution submits that the electronic parts of four files do not constitute breaks in fact.

15. Starting with the recording requirements, I am satisfied that the first prescribed interview with JY was conducted in accordance with reg 23(1)(a)(i) and (ii) of the SO Regulations in that the audio visual recording includes audible statements by BS Whyatt of the date on which the recording was made, and the identity of all persons present. Further, I am satisfied that the interview was conducted in accordance with sub-reg (iii) in that it includes information about details of any breaks in the interview.

16. The term ‘break’ is not defined in the SO Act or SO Regulations. In ascribing a meaning to the word, I am guided by the following principles of statutory interpretation, as summarised by Lovell JA in Question of Law Reserved (No 1 of 2021) [2020] SASCA 148; (2021) 140 SASR 135 at [48]:

    In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. Context, in its widest sense, and the purpose of the statute, inform the interpretative task throughout. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.

    (Citations omitted)

17. The Macquarie Dictionary attributes the following meaning to the word ‘break’ as a noun: ‘a forcible disruption or separation of parts; a breaking; a fracture, rupture, or shattering’; and further, ‘an interruption of continuity; suspension, stoppage.’[88]

    [88]   Macquarie Dictionary (online at 3 September 2025) ‘break’ (def 59, 63).

18. In Brown (A Pseudonym) v The King [2025] SASCA 40, Livesey P noted that s 13BA of the Evidence Act is part of a suite of provisions ‘designed to facilitate obtaining evidence from complainants or witnesses before trial commences, and then admitting it at the trial’.[89] His Honour noted that the effect of provisions including s 13BA of the Evidence Act and ss 74EA-74EC of the SO Act ‘is to render pre-trial statements and evidence from complainants or witnesses in child sexual cases admissible at the trial.’[90]

    [89] At [127].

    [90] At [142].

19. Regulation 23(1)(a)(iii) is enacted in the context of a legislative scheme which purports to regulate the manner in which out of court statements of vulnerable witnesses intended for use at the trial are taken and recorded. In view of the significance of the potential ultimate use of such material, it is critical that the manner in which a witness’s statement is taken and recorded be regulated for accuracy and transparency. Regulation 23(1)(a)(iii) recognises the potential for relevant statements to be made by a witness (or interviewer) or for a witness to be subject to influence in the course of such an interview; the requirement for an interview to include details about the timing of, and reason for, any breaks is indicative of an intention that any interruption of a witness’s account should be scrutable.

20. In the context of reg 23(1)(a)(iii), I consider that the term ‘break’ is intended to refer to the pausing or suspension of an interview in real time, or as pertaining to the occurrence of the interview itself which is the subject of audio visual recording. I am prepared to take notice of the fact that audio visual recordings can present across multiple files which sequentially represent an uninterrupted actual event. I do not consider that the term ‘break’ in the phrase ‘any breaks in the interview’ relates or extends to electronic breaks in the sense of the way in which the electronic data which comprises an audio visual recording is collected.

21. In this case, I accept BS Whyatt’s evidence that the four files which comprise Exhibit VDP5 represent the ‘one solid interview’[91] with JY, and that there were no breaks in that interview. Putting the matter of lack of synchronisation to one side, I am satisfied from my own viewing of Exhibit VDP5 that the four files run on in sequence to represent a single, unbroken interview as an event in real time and I discern no indication whatsoever of any break or non-recording of any part of the interview during the times when the camera was recording.

    [91]   T43.

22. Although I am satisfied that there were no breaks in the interview, for the reasons which I have outlined in the previous section of this ruling, the audio visual recording of the interview with JY which has ultimately been produced is deficient as a record of that which took place in the course of the interview for the original recording is unavailable, the available copy of the original recording appears to have become corrupted so as to lose audio components and the transcoded/ameliorated version still contains at least a portion which is out of sync thereby interfering with the ability to fully assess reaction and demeanour on the part of the witness. There is no evidence before me which explains how the electronic breaks (as I have described them) manifested, or which links them to the desynchronisation which occurred in respect of the recording. On the evidence before me, BS Whyatt did not check that her recording equipment was functioning properly before she commenced the interview with JY other than to check that the device had battery. It is reasonable to conclude, in the absence of any other explanation, that the functioning of the recording device caused the division of the recording of the interview into four files and possibly the desynchronisation. Its efficacy was never checked. The general order required that the audio visual and sound equipment be tested prior to conducting an interview.[92] It cannot have been onerous to check that the recording equipment was working properly in advance of the interview when there was, on BS Whyatt’s evidence, no particular urgency about conducting the interview, and basic prudence dictated that it should have been checked where the interview was to be undertaken at a remote location (that is, not at a police station with fixed, dedicated recording equipment). In this regard, the potential legal consequence of the recording coming to stand in the place of the alleged victim’s evidence at a criminal trial, a matter about which BS Whyatt was aware, is significant for it gives the failure to check the equipment something of a reckless flavour. And so while I am satisfied that there were no real time breaks in the interview, the failure to check the recording equipment, which might have averted the production of a deficient recording, is a matter which I would take into account in determining whether it is in the interests of justice to admit the recording in the face of non-compliance with Part 17 Division 3 of the SO Act, a matter to which it shall be necessary to return.

    [92]   Exhibit VDP4 (SAPOL General Order for interviewing suspects and vulnerable witnesses), p.18.

    Prescribed interviewer

23. The prosecution contends that BS Whyatt is a prescribed interviewer for the purposes of s 74EB(b) of the SO Act as she is a person who has successfully completed a training course in conducting interviews with vulnerable witnesses approved by the Commissioner of Police.[93]

    [93]   SO Regulations, reg 20(1)(c)(i).

24. As noted above, in 2012 BS Whyatt undertook the ‘Interagency Child Protection Course’. The affidavit of Commissioner Stevens provides that SAPOL records document BS Whyatt successfully completing a joint SAPOL and TAFE training course titled ‘Interagency Practice in Child Protection’ between 3 and 13 September 2012. I have taken the course referred to by Commissioner Stevens to be the ‘interagency child protection course’ described by BS Whyatt, and there was no suggestion to the contrary in argument before me.

25. Commissioner Stevens notes in his affidavit that the requirement for interviews with vulnerable witnesses to be conducted by prescribed interviewers contained in s 74EB of the SO Act was introduced by the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA), which was assented to on 6 August 2015. Commissioner Stevens further notes reg 20(1)(c)(i) of the SO Regulations whereby, for the purposes of s 74EB(b) of the SO Act, a prescribed interviewer is a person who has successfully completed a training course in conducting interviews with vulnerable witnesses approved by the Commissioner of Police.

1. Essentially, Commissioner Stevens purported to approve the Interagency Practice in Child Protection training course as a training course in conducting interviews with vulnerable witnesses for the purposes of s 74EB(b) of the SO Act and reg 20(1)(c)(i) of the SO Regulations. He purported to do so, as he explains in his affidavit, by amending the SAPOL General Order for interviewing suspects and vulnerable witnesses. [94]

   [94]   Which replaced the previous General Order for electronic recording of interviews: VDP11 (Affidavit of Grantley John Stevens 30 May 2025) [7]; exhibit GJS-1.

2. The Commissioner of Police is empowered pursuant to s 11(1) of the Police Act 1998 (SA) to make general orders for the control and management of members of SA Police. Commissioner Stevens provides that general orders are used ‘to explain the law and detail administrative arrangements approved by [him] for all members and employees of SAPOL’.[95] By amendments made to the General Order for interviewing suspects and vulnerable witnesses on 6 July 2016 (‘the General Order’), the following was included:

   [95]   VDP11 (Affidavit of Grantley John Stevens 30 May 2025).

   Prescribed Interviewer (Regulation 20 SOR)

   For the purpose of section 74EB(b) of the SOA means a police officer who has successfully completed one or more of the following courses:

   ·Certificate IV in Child Abuse Investigations Course (obtained prior to 2006)

   ·Interagency Practice in Child Protection training course.

   ·Specialist Investigative Interviewing provided by Deakin University. This provides knowledge and skills in investigative interviewing of vulnerable witnesses.

   This only applies to prescribed interviewers interviewing vulnerable witnesses. There is no requirement for a prescribed interviewer when interviewing suspects. Prescribed interviewer only applies to vulnerable witnesses.

3. Commissioner Stevens describes this part of the General Order as constituting a ‘statement regarding the training courses approved by [him] pursuant to reg 20(1)(c)(i) of the SOR in [his] capacity as Commissioner of Police’.[96]

   [96] Affidavit Stevens [8].

4. Commissioner Stevens provides that the Interagency Practice in Child Protection course completed by BS Whyatt in 2012 thereafter remained a training course in conducting interviews with vulnerable witnesses approved by him.[97]

   [97] Affidavit Stevens [9].

5. The defence submission, said to find support in Cosenza v State of South Australia [2024] SASC 97 (‘Cosenza’), is that the General Order is incapable of providing the necessary approval for the purpose of a regulation. In Cosenza, McDonald J was concerned with the question of whether an admitted breach of a general order by a police officer failing to complete a pro forma document invalidated an otherwise lawful arrest. Her Honour found that it did not, applying a line of Supreme Court authorities which provide that a general order is not subordinate legislation.[98]

   [98]   Cosenza v State of South Australia [2024] SASC 97 at [367]-[373].

6. I do not consider that the Commissioner in this case is in any way seeking to invoke, or point to, the General Order as a legislative instrument or law-making edict. Reg 20(1)(c)(i) of the SO Regulations is the legislative instrument by which the Commissioner is authorised to approve a training course in conducting interviews with vulnerable witnesses which would make a person who has completed such a course a prescribed interviewer for the purposes of s 74EB(b) of the SO Act. On my interpretation of the evidence of Commissioner Stevens, the General Order effectively lists the courses which he has approved for the purpose of Reg 20(1)(c)(i). That is something different to purporting that the General Order stands as, or in place of, approval by the Commissioner.

7. I consider that by approving the General Order for interviewing suspects and vulnerable witnesses on 1 July 2017 (issued on 6 July 2017), Commissioner Stevens unequivocally indicated that he had approved the Interagency Practice in Child Protection training course as a course the successful completion of which would designate a police officer as a prescriber interviewer for the purpose of s 74EB(b) of the SO Act. It is clear from the language employed in the General Order (‘has successfully completed’) that it was intended to identify courses which an officer may have already completed, such as in the case of BS Whyatt.

8. For completeness, I note that at the time of the first prescribed interview with JY, the operative General Order continued to nominate the Interagency Practice in Child Protection training course as a course the successful completion of which would qualify a police officer as prescribed interviewer for the purpose of s 74EB(b).[99]

   [99]   Approved by Deputy Commissioner Linda Willians on 12 September 2022 (VDP11: Affidavit of Grantley Stevens 30 May 2025, exhibit GJS-2); VDP10 Instrument of Delegation.

9. I am satisfied that at the time of conducting the prescribed interview with JY on 20 October 2023, BS Whyatt was a prescribed interviewer.

   Leading questions

10. For the most part I do not consider that the statement made by JY in the first prescribed interview was elicited by the use of leading questions.

11. A leading question is one which suggests an answer or assumes the existence of disputed facts to which the witness has not yet testified.[100]

    [100] JD Heydon, Cross on Evidence (LexisNexis Australia, 14^th ed, 2023) [17150].

12. The prescribed requirement contained in reg 23(7)(a) allows for a degree of leading which is indicated by the introductory words, ‘so far as is practicable’. This suggests to me that a degree of leading is tolerable, for example, to introduce a topic.

13. BS Whyatt introduced the subject matter in a non-leading way by asking JY what she had come to talk to her about, and followed up with ‘tell me more’ – type questions.[101]

    [101] Exhibit VDP5A p.5.

14. Starting from a point corresponding with question 766, BS Whyatt employed a questioning technique of putting JY’s account to that point back to her with an invitation for JY to correct her if she summarised incorrectly.[102]

    [102] Exhibit VDP5A p.16.

15. I do not consider that this involved the use of impermissible leading questions; specifically, it cannot be said, in view of the questions representing a summary of the account already given by JY, that constituted a statement elicited by the use of leading questions.

16. Having considered JY’s interview on 20 October 2023 in its entirety, I consider that it meets the prescribed requirements in this regard.

17. To the extent that it is possible to identify particular aspects of JY’s account which appear to have been elicited or confirmed by the use of leading questions (which contained information or suggested an answer), such as, for example, Q.761 and Q.817, and this represents some departure from the prescribed requirements, if this were the only departure, I would nevertheless admit the interview in the interests of justice despite the interviewer’s non compliance pursuant to s 74EC(1)(b) of the SO Act.

    Failure to record all conversations

18. Section 74EB of the SO Act imposes an obligation upon police officers as investigators to audio visually record, in accordance with the regulations, interviews with children of or under the age of 14 years as potential witnesses in relation to the investigation of serious offences against the person (which include child sexual offences). The word ‘must’ indicates that a police officer is required to conduct an interview of this kind in the manner described in the section.[103]

    [103] Legislation Interpretation Act 2021 (SA) s 11(3).

19. Section 74EC(1) renders evidence of an interview between a prescribed interviewer and a child of or under the age of 14 years who is interviewed as a potential witness inadmissible in proceedings for a charge of a serious offence against the person unless the prescribed interviewer complied with Part 17 Division 3 in relation to the conduct and recording of the interview,[104] or the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interview’s non-compliance.[105]

    [104] SO Act, s 7AEC(1)(a).

    [105] SO Act, s 74EC(1)(b).

20. It plainly emerges from the evidence of BS Whyatt that she had certain conversations with JY, both before and after the formally recorded prescribed interview on 20 October 2023, which were not recorded.

21. The issues which arise for determination are whether those conversations attracted the recording obligation contained in s 74EB and, if so, whether the interests of justice require the admission of the first prescribed interview despite BS Whyatt’s non-compliance.

22. The defence submits that the text of s 74EB of the SO Act makes it clear that a police officer must make an audio visual recording of an interview where a person to whom Division 3 applies (relevantly, a child of or under the age of 14 years) is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person. An interview in that context includes a conversation or part of a conversation. The defence points to the expansive meaning which has been attributed to the term ‘interview’ in the context of police obligations under s 74D to record interviews with suspects in the cases of Steen v The Queen [2020] SASCFC 60 and Lindsay v The King; Rankine v The King; Woods v The King [2022] SASCA 138 in support of its submission that the first prescribed interview was not conducted in accordance with s 74EB on account of the failure of BS Whyatt to record parts of her conversation with JY which related to her investigation of the allegations which were self-evidently intended to be the subject of the interview. The defence submission is not that all conversation is required to be recorded, for example, it is not suggested that the police would be obliged to record conversation about the witness’s state of comfort or matters unconnected to the investigation. The defence submits that once the threshold is crossed whereby a police officer intends to interview, as in this case, a child as a potential witness in relation to the investigation of a child sexual offence, any conversation which constitutes part of that interview must be recorded. As the nett result of a recorded interview may be the production of evidence which is admitted as the witness’s evidence in a criminal trial with some restriction upon cross‑examination (in the sense that there is a requirement for permission), the court must insist upon absolute adherence to the recording requirements set in Division 3 to ‘remove from the equation anything that depends on the credibility and reliability of the police officer as to what was said and what was done.’[106]

    [106] T115.

23. The defence submits that the requirement for fulsome recording in this case was heightened as JY was to be interviewed in the absence of her parents and without their consent or knowledge, and in a potentially coercive environment of a school room to which the child was brought by a member of school staff. Based upon the evidence of BS Whyatt, the defence submits, there is a lack of visibility into what transpired in the lead-up to the recorded portion of the interview in which JY’s incriminating allegations were advanced, and this lack of visibility is inconsistent with the statutory regime which seeks to ensure that objective evidence of an interview is produced.

24. The prosecution submits that there was no obligation upon BS Whyatt to record all interactions with the witness, particularly those of a ‘peripheral nature’.[107] The prosecution submission, as I understand it, is that s 74EC of the SO Act is concerned with the admissibility of that much of an interview which the prosecution seeks to lead (in this case, being the recorded portion) and ‘says nothing of the exclusion of a prescribed interview if there has been a conversation with a vulnerable witness that was not the subject of an audio visual recording either before or after that conversation.’[108]

    [107] Written Submissions of the Prosecution (FDN 69) [11].

    [108] Written Submissions of the Prosecution (FDN 69) [43].

25. As will be seen from my summary of BS Whyatt’s evidence on the voir dire, the unrecorded conversations which she engaged in with JY fell into the following categories:

    (1)Conversation prior to recording between 9:30am and 9:43am.

    (2)Conversation post-recording.

    (3)Statement taken on 18 February 2025.

26. Although BS Whyatt was cross-examined about proofings conducted on 29 July 2024 and 24 March 2025, I did not understand it to be submitted on behalf of the defendant that the s 74EB obligation existed in those settings, or that what transpired on those occasions was in any way relevant to the issues to be determined on the voir dire. I will therefore not mention the proofing meetings further.

27. In summary, I consider that the conversations which BS Whyatt engaged in with JY either side of the recorded prescribed interview conducted on 20 October 2023 constituted part of the one interview and required compliance with s 74EB. The topics covered, particularly in the post recording phase, were substantive, which makes BS Whyatt’s non-compliance with the recording requirement significant as the defendant and the court have been deprived of the best evidence, and of fulsome, objective evidence, of what was asserted by the complainant on the occasion of making her first statement to the authorities about the alleged conduct of the defendant. In circumstances where that statement (or at least the recorded part) is proposed to effectively take the place of the key prosecution witness’s evidence in chief at the defendant’s trial and where, in my assessment, the failure of compliance has not been satisfactorily explained, I am not satisfied that the interests of justice require the admission of the evidence.

28. Starting with the conversation prior to recording, at a general level I accept the evidence of BS Whyatt that prior to the commencement of the recording, she had no conversation with JY about the alleged offending, and that the conversation related to what might be described as preliminary matters, such as JY’s willingness to participate in a recorded interview and whether JY wished to have a support person present. As to that last matter, I do not discern from the SO Act or Regulations that there is any specific requirement upon a prescribed interviewer to audio visually record details of any enquiries made, or beliefs formed, about whether the vulnerable witness should be accompanied during the interview by a prescribed companion or communication assistant. Regulation 23(1) is concerned with the visibility of such persons in a recording and with the obligations upon a prescribed interviewer to make appropriate arrangements where they believe that the vulnerable witness may have complex communication needs or should be provided with emotional or other support during the interview. That is not to say that a conversation between a prescribed interviewer and a vulnerable witness on the topic of a possible companion need never be recorded. It will depend upon the circumstances which appertain. In Steen v The Queen [2020] SASCFC 60, Doyle J (as he was), dissenting on the question of whether an unrecorded preliminary verbal exchange between a police officer and a drug trafficking suspect on the topic of the suspect’s employment status constituted an interview for the purposes of s 74D of the SO Act, allowed for a type of exchange which falls short of an interview. His Honour suggested that the evaluation would be informed by the nature and content of the exchange.[109]

    [109] Steen v The Queen [2020] SASCFC 60 [166]-[168].

29. Under s 74EB of the SO Act, the obligation to record relates to the interviewing of a vulnerable witness as a potential witness in relation to the investigation of a serious offence, which includes a conversation or part of a conversation.

30. There may be situations in which a police officer converses with a vulnerable witness on topics which are entirely preliminary and introductory in nature, which might be directed at evaluating the witness’s capacity and vulnerability and any concomitant need for support or communication assistance, and which do not involve or traverse into interviewing the witness in relation to an investigation. In other situations, a witness’s requirement for support or communication assistance might be explained or become evident once an interview proper has been embarked upon. Whether the obligation to record exists in a given situation must be determined by reference to whether the witness is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person.

31. There was a degree of common ground between the prosecution and defence that not all conversations between police and vulnerable witnesses need to be audio visually recorded. The defence position was explicitly to the contrary of a suggestion that police would have to record a conversation about offering a drink of water, for example. It stands to reason and reflects the practicalities of police interviewing children on video that there should be some introductory explanation of the situation which is presented to a child sometimes without forewarning of what is proposed to occur.

32. In this case it is noteworthy that there was a window of 13 minutes between JY being brought into the room and the recorded interview commencing. That is a not insignificant period of time as a prelude to a recorded interview which lasted 42 minutes.

33. On BS Whyatt’s evidence, the pre-recording conversation touched on the reason why an interview was to be conducted and what it was to be about. The extent of the evidence which BS Whyatt was able to give about what was said on this topic was that it related to ‘stuff’ or ‘things’ that JY had previously disclosed at school. There is no evidence before me on the voir dire as to what any such disclosure involved.

34. In the recorded interview, BS Whyatt opened the topic (after some familiarisation questions) by saying to JY, “So let’s talk about why we are here today, what have you come in to talk to me about?” JY’s response was, “um sexual abuse”, and the interview proceeded from there.[110]

    [110] VDP5A p.5.

35. As BS Whyatt could not recall the pre-recording conversation and made no note about it, there is no reliable record of what was or was not discussed at the sensitive and critical time of the child witness preparing to embark upon a process of describing alleged sexual offending for the first time in a form which was intended in the event of a prosecution to stand as the child’s evidence.

36. It is impossible for me to be satisfied that in the 13 minutes before the recording was activated, any discussion between BS Whyatt and JY was limited to basic preliminaries and did not touch on the subject matter of her allegations against the accused, which was the very matter under investigation by BS Whyatt. Whilst BS Whyatt may not have considered that talking to JY about the reason for the interview involved conversation about the alleged offending, it is obvious to me that to some degree it had to have involved conversation about that matter. The consistency or inconsistency of the witness’ account cannot be evaluated by reference to what was actually said, and how, nor can it be seen whether there was any opportunity for the witness to have been encouraged or influenced, for example by well-intentioned statements of support by the interviewer. There is no indication in the recorded interview itself that the pre-recording conversation did not concern the allegations or was in any way limited to benign topics. For example, there was no recap of pre-recording events to confirm what had transpired. The safeguards which are plainly intended by the prescribed interviewer regime were not applied to a potentially significant 13 minute episode of conversation with JY before the recording was commenced, and no real explanation was given by BS Whyatt as to why that portion of conversation was not audio visually recorded.

1. The post-recording conversations between BS Whyatt and JY are attended by the same concerning lack of safeguards and lack of explanation for non‑compliance with the requirement to record. In the case of the post-recording conversations, the subject matter is known – that is, that K was a possible victim, the defendant’s employment status and the complainant’s fear of the defendant. Each of these topics, particularly the last, related directly and unequivocally to BS Whyatt’s investigation and clearly brought forward responses which were capable of informing JY’s account of relevant events. BS Whyatt’s initial evidence denying that any further conversation took place following the recorded interview, which was demonstrated and conceded to be wrong in light of her notes and affidavit, illustrates in a powerful way how the lack of recording can mask an honest interviewer’s memory of important events and conversation with a witness.

2. I record that I did find BS Whyatt to be an honest witness. I am unable to make any firm finding as to the reason for her failure to record the pre – and post –recording conversations with JY. I gained the impression from BS Whyatt’s evidence that she considered herself to be conducting the interview in a way that was consistent with her training as a prescribed interviewer. BS Whyatt demonstrated in evidence that she had an understanding of the basic requirements for conducting a prescribed interview with a vulnerable witness insofar as the SO Regulations prescribe requirements for that which must be included in an audio visual recording of such an interview and for the conduct of the interview itself. However, she did not exhibit a deep understanding of extent of the obligation to record interviews with vulnerable witnesses set in s 74EB of the SO Act. BS Whyatt was not asked any questions regarding her understanding of the obligation under s 74EB to audio visually record an interview with a potential witness in relation to the investigation of a serious offence, what constitutes an interview or what is contained in the General Order, and so I make allowance for her perhaps not being given a fulsome opportunity to demonstrate the extent of her knowledge and understanding in this regard.

3. A further illustration of the limitation on BS Whyatt’s understanding of the extent of her obligation to record interviews with vulnerable witnesses is the taking of the statement from JY in the form of an affidavit on 18 February 2025. BS Whyatt’s own assessment of that matter, after speaking to a colleague during cross-examination, was that she should have undertaken a further prescribed interview. It is not necessary for me to determine on this application whether BS Whyatt should or should not have done so, for s 74EC of the SO Act only applies to render inadmissible evidence of an interview between a prescribed interviewer and a vulnerable witness. I am not concerned with the admissibility of the statement taken from JY on 18 February 2025 on this application.

4. BS Whyatt was not re-examined with respect to the different approach she had taken to obtaining this statement from JY or to explain her evidence in cross-examination that she should have instead conducted a further prescribed interview.

5. Ultimately, that BS Whyatt should take statements from JY by a combination of recorded interviews, unrecorded conversations and in the form of an affidavit over a period of about 14 months, all while JY was under 14 years of age, underscores a lack of certainty on her part about the obligations upon her in respect of interviewing a vulnerable witness as a potential witness whose evidence may be admitted in a criminal trial at least in part in the form of an audio visual record made outside of court and before trial.

6. The prosecution has referred me to a ruling of his Honour Judge Stretton in a matter of R v G, BA [2022] SADC 93 as being persuasive on the matter of Part 17 Division 3 of the SO Act not constituting a code for the admission of the evidence of a vulnerable witness who is a child of or under the age of 14 years in the form of an audio visual record. In R v G, BA, Judge Stretton was concerned with a different question to that which arises on this application, namely, whether provisions of the SO Act operate to preclude the prosecution from eliciting evidence from a vulnerable witness at trial other than in the form of a prescribed interview. Judge Stretton held that they do not. Nothing in R v G, BA detracts from, or purports to limit, the obligation contained in s 74EB which is for police to make an audio visual recording of an interview with a potential witness in relation to the investigation of a serious offence against the person. The ruling does not assist me in identifying the bounds of the pre and post-recording conversations with JY which formed part of the interview and therefore fell to be recorded, and I would not interpret the ruling as generally limiting the recording requirement when an interview is to be embarked upon.

7. I find that by failing to record those parts of her conversation with JY which constituted the pre-recording and post-recording conversations either side of the recorded portion of the prescribed interview conducted on 20 October 2023, BS Whyatt failed to comply with the requirement set in s 74EB of the SO Act to make an audio visual recording of the interview. It follows that, if the transcoded version of the interview constitutes an audio visual record of the interview, it is inadmissible in the defendant’s trial unless I am satisfied that the interests of justice require the admission of the evidence despite the non-compliance.[111]

   [111] SO Act, s 74EC(1)(b).

8. In R v King & Pitson (No 2) (1998) 199 LSJS 112, in the context of determining whether a non-compliant police interview with a suspect under s 74D of the SO Act ought to be the subject of a ‘dispensing order’ as his Honour Cox J described it under s 74E(1), which is in substantially the same terms as s 74EC(1), his Honour said that under the section, exclusion is to be the norm and admission of the evidence exceptional.[112]

   [112] R v King & Pitson (No 2) (1998) 199 LSJS 112 at 119.

9. In R v Pedler [2017] SASCFC 108, also in the context of non-compliance with s 74D rendering evidence of a police interview of a suspect inadmissible, in circumstances where the officer attempted to comply and believed that she had done so but there was a recording malfunction, Vanstone J (with whom Kelly and Doyle JJ agreed) held that the admission of evidence of a recalled summary of the interview subverted the purpose of the legislation, and said:[113]

   It is implicit in the legislation that the obligation upon the investigating officer extends to presenting the recorded evidence of the interview to the Court. Section 74E contemplates only two situations: compliance and non-compliance with the legislation. Compliance must be taken to include presentation of a viable recording to the court. In some circumstances non-compliance may be overlooked if the “interests of justice require the admission of the evidence”: s 74E(1)(b), but it is unlikely that would be so unless the available evidence was seen to be an accurate record of the entire conversation.

   [113] R v Pedler [2017] SASCFC 108 [21].

10. Vanstone J’s remarks are apposite to this case as the importance of police compliance with the requirements for recording and the production of an accurate record of an interview with a child witness who is the alleged victim of a sexual offence must be of at least equivalent importance to police compliance with the provisions which relate to a proposed interview with a suspect. The suspect interview recording provisions and the vulnerable witness interview recording provisions share a common rationale related to the elimination of disputes about what was said in the course of police questioning which is capable of bringing forth evidence which may be admissible in a criminal trial and, generally, against a defendant’s interests. In this case, the police have not produced an accurate record of the entire conversation with JY and the record which does exist is compromised.

11. In Lindsay v The King; Rankine v The King; Woods v The King [2022] SASCA 138, also concerned with s 74D, Kourakis CJ said of the inadmissibility of an interview unless the interests of justice requires its admission:[114]

    It must first be observed that the evidence is inadmissible unless the discretion is exercised favourably to the prosecution. The prosecution carries the burden of satisfying the judge that the interests of justice require the admission of the evidence. A significant determinant of the interests of justice will be the extent to which the mischief, to which Pt 17 of the SO Act is directed, is ameliorated in all of the circumstances of the case.

    [114] At [177].

12. Undoubtedly the offence with which the defendant is charged is serious and the transcoded interview supplies apparently cogent evidence of the commission of the offence in the form of audible statements by JY describing the defendant’s conduct in response to mostly non-leading questions. It is in the interests of justice for the evidence of a vulnerable witness who is a child and the alleged victim of a sexual offence to be placed before the court in the form of a pre-recorded out of court statement which minimises, and may eliminate, the need for the child to further recount events of a sexual, intimate, embarrassing or distressing nature. In order for the interests of justice to be so served, any such pre-recorded out of court statement must be taken with the utmost adherence to the law which provides for the admission of evidence in this form. The evidence in chief of a complainant witness taking the form of a pre-recorded interview involves ‘a most radical change to the traditional rights of an accused person. What safeguards there are need to be stringently adhered to…’[115]

    [115] Sears v The Queen [2020] SASCFC 107 [40] per Peek J.

13. I regard the non-compliance with Division 3 by BS Whyatt by not recording all conversations forming part of the first prescribed interview as a serious one in the sense that it involved an unjustified and unexplained departure from the requirement to audio visually record all such conversations with the result that potentially important lead-in questions and answers on the topic of what was to be the subject of the interview (“sexual abuse”, as it was first articulated in the recorded portion of the interview) are not the subject of an objective, scrutable record. The situation is compounded by a lack of contemporaneous notes which might have gone some way to informing the court about this void. That BS Whyatt may not have appreciated the extent of the obligation to record and may have misunderstood or mistakenly assumed that she had a discretion not to record part(s) of an interview relating to her investigation (and it is not clear whether this was the case) does not detract from the significance of the outcome of her non-recording which is that it creates this evidentiary void which can only be resolved by resorting to her asserted memory that the allegations were not discussed and statements about her usual practice. As has been demonstrated, BS Whyatt was wrong in her initial assertion in evidence that nothing additional to what was in the recording was discussed. As the recording of BS Whyatt’s interview with JY is essentially incomplete, if the transcoded version is an audio visual record, I would not be satisfied that the interests of justice require its admission in the face of non‑compliance by not recording all of the interview.

14. Further, there is a compounding adverse effect upon the quality of the transcoded interview wrought by the incomplete correction of the problem with lack of synchronisation (referred to above) and the physical circumstances of the recording itself. By physical circumstances, I am referring to the features of the recording which include that JY is quite softly-spoken and the recording is made in an environment in which what I suspect are airplanes can be heard flying overhead from time to time and some indistinct sounds occasionally permeate from outside the room (possibly from an adjacent room). Another physical circumstance of the recording is that JY is positioned in profile to the camera; I do not suggest that this is a defect of a kind which was considered in Cronin to deprive the recording of a visual component, however, in the context of the rest of the recording, which includes JY’s soft manner of speaking and the intruding sounds, her side-on positioning to the camera has the result that the recording does not include a full-frontal view of her face and facial expressions as she is answering questions. This diminishes in a small way one’s ability to evaluate her presentation and demeanour throughout the recorded portion of the interview. In this sense, the recording of JY is slightly lacking in ‘some of the important features of evidence given in person’.[116]

    [116] Cronin [21].

15. It is true that BS Whyatt conceded that there was no urgency in conducting the interview and no impediment to her conducting it in a purpose-fitted recording suite at the Victim Management Section, however, I do not criticise her for not doing so. I accept BS Whyatt’s evidence to the effect that the exigencies and practicalities of the situation as she evaluated them meant that it was suitable to conduct an interview at the school. But having committed to doing so, her failure to check the equipment and, it would seem, to give attention to the matter of ensuring the clearest depiction of the witness in the proposed recording, contributed to the overall production of a recording which, in my assessment, was not of optimal quality to stand as the evidence in chief of the child.

16. There is much about BS Whyatt’s conduct of the first prescribed interview, and her presentation in it, which is consistent with her being authentically committed to producing a compliant recording. As I have said, I accept that she had a basic understanding of the requirements of the SO Regulations concerning the matters to be attended to within and as part of the recorded interview. However, it is unfortunate that her understanding of the nature and extent of her obligation to record all conversation which formed part of the interview of the witness in relation to the investigation was limited. I am unable to make any finding as to whether that reflects a systemic lack of or mis-understanding within SAPOL or whether it is idiosyncratic. I am satisfied that BS Whyatt tried to conduct the interview in a way which she genuinely thought or assumed to be compliant. In no sense did I gain the impression that the failure to record conversations was strategic or intended to circumvent her obligations under the SO Act; rather, I think it was the product of an imperfect understanding of those obligations. On the other hand, I found BS Whyatt’s non-explanation for not checking the recording equipment in advance of the interview to reveal an unacceptably casual attitude to the importance of ensuring the production and integrity of a proper audio visual record.

17. Taking all of those matters into account, I would not have been satisfied that the interests of justice require the admission of the evidence of the recorded interview.

    Admissibility of the second prescribed interview with JY

18. In view of my ruling in relation to the first prescribed interview it is not necessary to rule on the Director of Public Prosecutions’ application to admit the second prescribed interview as I infer it would not be sought to be led by the prosecution.

    Order

19. The application by the Director of Public Prosecutions for the evidence of the witness JY to be admitted in the form of an audio visual record made on 20 October 2023 (FDN 11) is refused.