EVIDENCE (IDENTIFICATION EVIDENCE) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:41): 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 Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:42): I move:

That this bill be now read a second time.

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

Leave granted.

Labor's Strengthening our Police Service Policy 2010 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.

This Bill is the Government's third attempt to implement this policy. The first two attempts failed in the Legislative Council. The Government has listened to the concerns expressed by members of the Legislative Council about the content of the first two Bills and, as a consequence, has included a new provision in this Bill in an attempt to address these concerns. Further comment on this particular provision is set out below.

A properly conducted identification parade has been regarded traditionally as giving rise to the most confidence in a reliable identification. As was explained by Gibbs J in 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 an identification parade is preferred to other alternatives, such as from photographs, at least when a named suspect is reasonably known to the police (though 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 identification parades 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 an identification parade. Such comments are open to criticism as confusing, unnecessary and even plain wrong.

However, it is clear that, notwithstanding Alexander, photographic identification evidence is routinely adduced at trials in South Australia. The practice of the courts has moved away from Alexander and toward the routine use of photographic identification evidence. It is widely accepted in practice as relevant and admissible evidence. It appears that local defence lawyers routinely advise their clients (perhaps unwisely) to refuse to take part in an identification procedure, therefore requiring the police to resort to photographic procedures. It appears that, notwithstanding Alexander, identification parades are already comparatively rare in practice in South Australia.

The traditional assumption that identification parades are a superior form of identification was accepted by the Australian Law Reform Commission in the 1980s and was incorporated into the Uniform Evidence Act which has been enacted in New South Wales, Victoria, the Commonwealth and the Australian Capital Territory (though not on this point in Tasmania). However, that 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 identification parades 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 [2007] WASCA 244 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 an identification parade. 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.

There has also been research, notably by Professor Neil Brewer at Flinders University, that highlights that traditional identification parades 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 identification parade to each other. They do this 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 identification parades 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.

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.

The core proposal of this Bill is, therefore to put photographic means of identification on an even footing with an identification parade. A bad photographic identification is just as bad as a bad identification parade—and a good photographic identification is just as good as a good identification parade. The form of the proposed amendment is designed to be technologically neutral.

As stated earlier, the Government introduced similar Bills in 2011 and 2012. The Legislative Council defeated both Bills due to a concern that the Bill should also include a statutory 'safeguard' to ensure that identification processes are adequate. This Bill includes such a safeguard by replicating the procedure set out in Part 17 of the Summary Offences Act 1953, namely, that the evidence will be inadmissible unless an audio-visual record of the identification process is made.

Evidence that does not conform to this requirement may only be admitted if the interests of justice require it.

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

It is proposed to insert a new section after section 34A of the principal Act.

34AB—Identification evidence

The new section provides that, in a criminal trial, evidence of the identity of the offender obtained by means of an identification process is not inadmissible merely because the evidence was obtained by a process other than an identification parade. The new section further provides that, in a criminal trial, evidence of the identity of the offender obtained by means of an identification process is inadmissible unless—

(a) an audio visual record of the identification process is made and kept in accordance with the regulations; or

(b) the judge is satisfied that, despite the failure to comply with paragraph (a), the interests of justice require the admission of the evidence.

If evidence of the identity of the defendant is admitted in a criminal trial where the defendant's identity is in issue, the judge must inform the jury—

(a) of the need for caution before accepting identification evidence; and

(b) of the reasons for the need for caution, both generally and in the circumstances of the case.

In giving any such information, the judge is not required to use any particular form of words but may not make any suggestion that evidence of identification obtained by an identification process other than an identification parade is any less reliable than evidence of identification obtained by those means.

To avoid doubt, a provision is included in the section that provides that the section does not make evidence admissible that would otherwise be inadmissible or affect the court's discretion to exclude evidence.

An identification process is defined for the purposes of this section as a process whereby a witness identifies another person, and includes an identification parade and identification from a photographic or other form of visual display.

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