EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development and Planning, Minister for Tourism, Minister for Food Marketing) (12:04): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development and Planning, Minister for Tourism, Minister for Food Marketing) (12:05): I move:

That this bill be now read a second time.

Labor's Strengthening our Police Service Policy2010 said:

'Line ups' require substantial police resources often requiring up to 10 police officers and up to 60 hours of police time to arrange. A re-elected Rann Government will amend legislation that will allow identification of a person suspected of committing an offence via photographs or video (including still or moving digital images) in lieu of physical 'line ups'. Police will be able to use technology such as PowerPoint presentations or mobile data terminals located within vehicles to present photographs to victims and witnesses. These changes will increase the efficiency of police investigations; relieve victims of the trauma of having to see the offender again and most importantly free up valuable police resources. Any changes to the legislation and procedures will ensure that the use of identification evidence in criminal proceedings will not be compromised.

A properly conducted identification parade or line-up has been traditionally regarded as giving rise to the most confidence in a reliable identification. As was explained by Gibbs J in the leading authority Alexander (1981) 145 CLR 395 at 401:

The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime.

Identification by means of a parade or line-up is traditionally preferred to other alternatives, such as from photographs, at least when a named suspect is reasonably known to the police (although the High Court accepted in Alexander that photographs were unobjectionable and probably unavoidable in the investigative stage when a suspect was not known). Alexander has been followed in South Australia. In Deering (1986) 43 SASR 252, King CJ said:

Where there is a clear and definite suspect or where an arrest has been made the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade. If that procedure is not followed it gives rise to a discretion in the trial judge to exclude the evidence of identification by other means and that discretion will be exercised having regard to all relevant factors including, of course, the public interest in ensuring that persons who have committed crimes are convicted and punished for those crimes. It may be necessary to present photographs to an alleged victim of a crime at a stage of the investigation at which no person has been arrested and at which there is no definite suspect, in order to provide an opportunity for the victim to pick out the offender.'

The traditional assumption favouring line-ups also gives rise to the potential for comment or warning to the jury by the trial judge that the weight of the photographic identification, whilst admissible, is inherently inferior to that of a line-up. Such comments are open to criticism as confusing, unnecessary and even wrong.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

However, it is clear that, notwithstanding Alexander, photographic identification evidence is used at trials in South Australia. The practice of the courts has moved away from Alexander and toward the use of photographic identification evidence. It is widely accepted in practice as relevant and admissible evidence.

The traditional assumption that line ups are a superior form of identification was accepted by the Australian Law Reform Commission in the 1980s and incorporated into the Uniform Evidence Act which has been enacted in New South Wales, Victoria, the Commonwealth and the Australian Capital Territory (although not on this point in Tasmania). However, the traditional assumption has come under increasing challenge over recent years on account of practical considerations, psychological and academic research, and technological advances. Other jurisdictions, notably Western Australia (by judicial ruling) and England, have explicitly departed from the preferred use of line ups and recognise the benefit of identification by means of photographs or a video.

The West Australian Court of Appeal in 2007 in Western Australia v Winmar considered the available research and 'firmly rejected' any suggestion that the identification from a photoboard (which is typically used in South Australia) was 'inherently inferior' to identification from a line up. The court observed:

The court should not, as some past authority may tend to suggest, attempt to discourage the use of the digiboard [the West Australian term for a photoboard] for identification, either by requiring trial judges to warn juries specifically about the dangers of that process as compared to an identification parade, or by requiring trial judges to suggest that the process is inherently flawed, or by suggesting that trial judges should be readier in the exercise of their discretion, to exclude digiboard identification than they might be to exclude evidence of identification by other means.

It can be argued that the practical problems that have arisen with line ups are:

Victims and witnesses are reluctant to face offenders (especially an issue in dealing with organised crime);

The major difficulties in securing the attendance of victim(s) and witnesses, suspects and sufficient volunteers of similar appearance to the accused at the same location for what can be a considerable time;

The increasing multinational and multicultural diversity of South Australia often makes it difficult, if not impossible, to arrange line ups if the suspect comes from a minority group;

It may be that some accused are of a unique or unusual appearance so that is impossible to organise a fair line up;

There simply may not be enough volunteers of similar appearance to the suspect to hold a line up—it is increasingly difficult to assemble volunteers to participate in line ups. The days of police going to the local university and finding a ready pool of volunteers appear to be over;

Suspects can (and often do) sabotage the identification process by failing to arrive at line ups arranged with considerable difficultly, by arbitrarily challenging the suitability of participants, by disrupting the process and by changing their appearance since the commission of the alleged crime;

Where identification is an issue, it is crucial that the identification of the suspect should be done as soon as possible after the offence—line ups cannot be arranged at short notice which prevents timely identification and weakens the probative value of any subsequent positive identification;

Line ups are time consuming and relatively expensive to arrange and hold. There are only limited facilities available. Although they may be realistic in serious crimes, they are not a realistic or cost effective solution in dealing with less serious but high volume crime, such as car theft, assaults or break ins. This results in solvable crime going undetected and the culprits going unpunished;

The difficulties in arranging an identification process are compounded when investigations are conducted in regional or remote locations.

There has also been research, notably by Professor Neil Brewer at Flinders University, that highlights that traditional line ups are not as reliable as was commonly supposed. It has been found that witnesses have a tendency to compare the appearance of each person in the line up to each other. They adopt this strategy as part of a strategy to find the person who most closely resembles the culprit. The process of comparison means that a witness is likely to make an identification, although not necessarily the correct one. A further problem that arises is that the 'simultaneous' format (where the witness views everyone at once) associated with traditional line ups has been found to increase the risk of false identification. Professor Brewer and others have found that a sequential form of identification (where the witness views the images one at a time) produces a substantially reduced rate of wrong identification.

Alexander was decided when black and white photographs were still routinely used. Photographic identification has become more sophisticated and effective in replicating real life. Although photographic identification is not without its difficulties, it is now arguable that photographic evidence is as reliable (if not even more so) than identification from a line up.

The use of photographs provides a fair and effective means of identification. There are a number of powerful advantages associated with modern photographic or video identification. It may be argued that:

It enables swift and timely identification which furthers the policy of detecting and identifying an accused at the earliest possible opportunity after a crime;

Prompt identification processes aid the police investigation of crime and also enable the prompt elimination of innocent suspects;

Photographs offer great advantage over line ups in the ability to feature persons of similar appearance to the suspect, especially if the accused is of unusual appearance or comes from a minority group;

Greater fairness to a suspect can be achieved by adjustment to photographs or identifying features to ensure the volunteers most closely resemble the suspect;

Photographs can be readily distributed to all regions of the State almost immediately;

Modern photographs are as reliable and accurate a means of identification (if not more so) than traditional line ups;

Photographs represent a realistic and cost effective means of identification thus enabling proper investigation of a wider range of crimes where identification is an issue.

Identification evidence has long been regarded as inherently problematic by the criminal justice system owing to the well documented risk of a mistaken identification by even honest witnesses leading to the real risk of a wrongful conviction. The difficultly in cross examining confident but wrong identification witnesses has long been recognised. The common assumption is that human memory is an uncomplicated photographic-like process but, as jurists and researchers note, the reality is that identification evidence presents its own real dangers. The potential unreliability is due to the subconscious frailties of observation and memory. To try and alleviate the dangers associated with identification evidence, the courts have long insisted that the jury must be warned as to the dangers of relying on identification evidence, both in general terms and in specific terms appropriate to the facts of the particular case (see R v Turnbull [1977] QB 224 and R v Domican (1992) 173 CLR 555). It is not proposed to dilute or remove this warning. This warning applies to all forms of identification evidence without discrimination and should remain where there is a real issue in the trial on point.

The form of the proposed amendment is designed to be technologically neutral.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Evidence Act 1929

4—Insertion of section 34AB

This clause inserts new section 34AB.

34AB—Identification evidence

The proposed section provides that evidence of the identity of the defendant is not inadmissible merely because it was obtained other than by an identification parade, if the judge is of the opinion that the evidence has sufficient probative value to justify its admission.

Proposed subsections (2) and (3) govern the information to be given to a jury by a judge in a criminal trial where the identity of the defendant is in issue and evidence of the identity of the defendant is admitted.

Debate adjourned on motion of Hon. I.F. Evans.