EVIDENCE (IDENTIFICATION EVIDENCE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:32): I rise to speak on the Evidence (Identification Evidence) Amendment bill 2013. This is a bill, as the government says, consistent with their police service policy of the 2010 election, which was offered by the then premier as an attempt to reduce the cost both in time and resources, particularly of members of the police force, in the requirement for identification of evidence, usually of persons, by identification through a physical line-up, rather than alternative processes such as use of photographs.

This bill is the government's third attempt to implement this policy and, whilst the government, and I think the Attorney-General in particular, has been publicly critical of views expressed and finally prevailing in the Legislative Council, the bills that had been presented by the government were sufficiently deficient that they needed considerable revision.

The position is that the Legislative Council has rejected the government's attempt in the two preceding bills and the government tells us that in this bill they have given some quarter to the issues raised from the Legislative Council debate during the defeat of the previous bills and accordingly have provided further amendment.

In particular, this bill is to include a statutory safeguard to ensure that the identification processes are adequate. The Attorney says that this new bill includes such a safeguard by replicating the procedure set out in part 7 of the Summary Offences Act 1953; namely, evidence will be inadmissible unless an audiovisual record of the identification process is made.

I will not traverse all the history of this; suffice to say that there has been a longstanding traditional assumption that the best identification evidence comes from identification parades, that is, personal line-ups. Whilst there has been a development of common law to support that, there has been some erosion of that, as a result of both academic and judicial expression, to support that alternatives can be used with certain safeguards, and that is the initiative that is ultimately taken up by the expansion of this bill. The new provision under the Evidence Act provides:

(1) In a criminal trial, evidence of 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 identification parade.

The new section further provides:

(2) In a criminal trial, evidence of the identity of the offender obtained by means of identification process is inadmissible unless—

and there are certain circumstances there, which principally relate to the audiovisual record of identification being made and kept, or that a judge is satisfied under the interests of justice threshold to admit the evidence.

There are amendments foreshadowed which the opposition will be agreeing to. I make a general comment that, although the opposition is very pleased that there has been a resolution to the extent that this bill be advanced, it is fair to say that when the government introduced, back in March 2011, the bill to remove the common law judicial preference for in-person suspect line-up parades over the other forms of suspect identification, as I previously referred to, there was opposition in the debate that identified that—ultimately with defeat twice in the Legislative Council.

In some attempt to progress this matter, back on 17 October last year the Hon. Stephen Wade in another place introduced an alternative bill. I mention that for two reasons; one is that the government obviously did not see fit to progress that bill, but did eventually bring in their own. However, I would like to make it absolutely clear that it was not the government's intention to let the benefits that were being sought in the original introduction of the bill to lapse and fall by the wayside because there had been a resistance of the government to accept the terms and conditions that were set by the Legislative Council.

I think our bona fides in this have been maintained throughout. In the process of providing an alternative process (in this case, the photographic identification process), we felt that it was always important that videorecording be mandated for identification parades and that judges should not be impeded or prohibited in the way that that was originally designed from being able to give warnings. In any event, what we have ended up with is, as I say, the third draft, and it is certainly improved. There are further amendments to be inserted. We will not be standing in the way of the progress of this bill, and—

The Hon. P. Caica: Let's get on with it, then.

Ms CHAPMAN: One of the members calls out to say, 'Let's get on with it.' There are recommendations in respect of advancing this common law practice that have been alive and well in this state since the 1980s. I think it is fair to say that, whilst some in the house take the view that something should be got on with, sometimes things are very difficult, and we have accepted—

The Hon. P. Caica: You make them so.

Ms CHAPMAN: Well, the member calls out to say that we have made them so.

The Hon. P. Caica: No, I said you made them so.

The DEPUTY SPEAKER: Order!

Ms CHAPMAN: Well, perhaps not you, sir; I do not think he is referring to you, I think he is referring to me.

The Hon. P. Caica: You're dead right there.

Ms CHAPMAN: Let me say this: in 2011, the government introduced its first bill on this matter. It then did nothing after it was rejected from the Legislative Council. A member of the Legislative Council on our side of the political spectrum took the initiative to introduce the bill in another place, and the government ultimately—here we are in 2013—introduced its alternative bill.

I just restate, for the benefit of what appears to be the dissenting voice in this parliament on the other side of the house about this matter, that the bona fides of the opposition on this matter are above reproach. We are concerned that it has taken that long; nevertheless, we are here, and we are keen to have this bill advanced. I look forward to the committee stage.

Mr PEGLER (Mount Gambier) (16:43): I rise to say that I will be supporting this bill. I believe that it basically puts photographic identification on the same footing as a traditional line-up. As far as I am concerned, I think we should sometimes think of those victims of crime; they are put in a fairly awkward situation. Even though the people in the line-up cannot see them, they know that they are on the other side of that wall; whereas, if they can look at the photographs in an orderly manner and in a proper environment, I think you will see much better identification than we do sometimes see with line-ups.

I suggest that that would be much better for the whole system. It is not just about money, it is about making it better for everybody. There is some clear evidence from Professor Neil Brewer that photographic evidence may be better than line-ups, so I certainly support that. I believe that, with the safeguard that there must be video taken of the procedures when they happen, that basically puts everybody at ease that there is no cajoling by the authorities so that they can be viewed, and we know then that the person who is looking at those photographs has not been conned into picking somebody out. I think it is going to be a much better system than we presently have, so I will be supporting the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:45): Again, I thank the member for Bragg and the member for Mount Gambier for their contributions. We could spend quite a bit of time traversing the history of this particular matter, because it has had quite an exciting—

Ms Chapman: We've done that.

The Hon. J.R. RAU: And so I do not think there is any point in doing that. I am past that. All I wanted to say, very briefly, was that there have been ongoing discussions between the government and the opposition—in particular, the Hon. Mr Wade and myself—about this matter. In fact, it has almost become a leitmotif of our relationship that we talk about this thing, we have been talking about it for so long.

We have got to the point where there were a number of things that Mr Wade was interested in, there were a number of things that we had a view about, and we have sort of cut and pasted and modified things. What we have basically in the bill, as I intend to amend it—because I have, I think, already tabled a bunch of amendments here—is a bill which basically becomes a splicing of the government bill and some of Mr Wade's thoughts. I do not know whether the honourable member for Bragg wants me to go through this now or do it in committee; I do not care.

Ms Chapman: In committee.

The Hon. J.R. RAU: We will do it in committee, okay. That is basically all I have to say.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 2, lines 13 to 16 (inclusive) [clause 4, inserted section 34AB(1)]—Delete subsection (1) and substitute:

(1) In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line-up of persons.

Amendment No 2 [AG–1]—

Page 2, lines 17 and 18 [clause 4, inserted section 34AB(2)]—Delete 'the offender obtained by means of an identification process is inadmissible' and substitute:

a person alleged to have committed an offence obtained by means of an identity parade is to be excluded

Amendment No 3 [AG–1]—

Page 2, line 19 [clause 4, inserted section 34AB(2)(a)]—Delete 'identification process' and substitute 'identity parade'

Amendment No 4 [AG–1]—

Page 3, line 1 [clause 4, inserted section 34AB(3)]—Delete 'the defendant' first occurring and substitute 'a person alleged to have committed an offence'

Amendment No 5 [AG–1]—

Page 3, line 2 [clause 4, inserted section 34AB(3)]—Delete 'defendant' second occurring and substitute 'person'

Amendment No 6 [AG–1]—

Page 3, lines 9 to 12 (inclusive) [clause 4, inserted section 34AB(4)]—Delete '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' and substitute:

suggest that identification evidence obtained from an identity parade by any means other than by a physical line-up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means

Amendment No 7 [AG–1]—

Page 3, lines 18 to 20 (inclusive) [clause 4, inserted section 34AB(6), definition of identification process]—Delete the definition of identification process and substitute:

identity parade means a contemporaneous presentation (whether by a physical line-up or by means of images) of a number of persons to a witness for the purpose of identifying a person.

I will give a very brief commentary, if I might.

The CHAIR: Yes.

The Hon. J.R. RAU: This is one through to seven. Amendment No.1 adopts elements from the opposition's bill and the government's bill, namely, that evidence is not inadmissible and nor can it be excluded merely on the basis of it being obtained from photographic displays rather than physical line-ups. This was always the clear purpose of the bill, and it has just been a matter of finding the correct words that everyone could live with.

As to amendments Nos 2 through to 5 inclusive, after considerable discussion with parliamentary counsel and my legal officers, it has been decided that the phrase 'a person alleged to have committed an offence' is preferable to the wording of 'an offender' in the context of what this bill seeks to achieve. These amendments insert those preferred phrases into the bill.

This amendment also adopts an element of the opposition's bill by using the opposition's preferred 'identity parade' terminology rather than the original 'identification process' terminology. This also occurs in amendment No. 7. Amendment No. 6 six adopts the element of the opposition's bill, being the insertion of the word 'inherently or intrinsically' into the clause.

I have to say that I do not take a particular view that these words add anything; however, in the interests of harmony, I do not think they do any harm, so for that reason and that reason alone, and in order to demonstrate what cooperative people we are, we will let those unnecessary words go in. The last one is consequential, as I said, to Nos 2 and 5.

Amendments carried; clause as amended passed.

New clause 5.

The Hon. J.R. RAU: I move:

Amendment No 8 [AG–1]—

Page 3, after line 20—After clause 4 insert:

5—Substitution of Schedule 1

Schedule 1—delete the Schedule and substitute:

Schedule 1—Review of identity parade evidence

1—Review and report on section 34AB

(1) The Minister must, within 12 months after the commencement of this clause, cause a review to be carried out of any orders and directions issued by the Commissioner of Police to support the operation of section 34AB of this Act (as inserted by the Evidence (Identification Evidence) Amendment Bill 2013), including the extent to which any such orders and directions—

(a) reflect scientific best practice; and

(b) make provision for the following:

(i) persons with disability;

(ii) cultural and linguistic diversity.

(2) A report on the review must be provided to the Minister within 3 months after the commencement of the review.

(3) The Minister must, within 12 sitting days after receipt of the report under this clause, cause a copy of the report to be laid before each House of Parliament.

This is because the opposition wanted to have some review clause inserted. I have come to note that the Legislative Council often prefers to have these things in there. I do not think it does any harm. I do not think it helps us much either, but it is not going to do any harm. So, in the interests of harmony, world peace, Kumbaya and stuff like that, I am accepting that.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:51): I move:

That this bill be now read a third time.

Bill read a third time and passed.