EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 20 February 2013.)

The Hon. J.A. DARLEY (15:37): I rise to speak very briefly on the Evidence (Identification) Amendment Bill 2013. As indicated by the Hons Mark Parnell and Kelly Vincent, the bill before us today is identical to that introduced by the government in April 2011. I have to agree with the comments made by the Hon. Mark Parnell yesterday with respect to this bill. As he indicated, this debate has been had and the concerns raised by various members in 2011 are yet to be addressed by the government. I support in principle what the bill is trying to achieve, but I think it is important that the government address those concerns before we proceed any further.

The Hon. S.G. WADE (15:38): On 9 March 2011 the Attorney-General, Hon. John Rau, introduced a bill to remove the common law judicial preference for in-person suspect line-up parades over other forms of suspect identification. The government's bill sought to remove the judicial preference for line-ups without any attempt to ensure quality in the delivery. It prohibited a judicial officer from telling the jury that any former suspect identification, other than a line-up, was less reliable unless it was in the interests of justice to do so. Effectively this meant that judicial officers would be forced to rank line-up parade identification as the least reliable form of identification of all forms of identification—basically a legislated falsehood.

The science suggests that, while the reliability of identifications, photoboards and line-ups is similar, fundamental to reliability is the quality of the procedures used. The opposition opposed the government bill on the basis that it was driven by cost savings and did not have sufficient regard for the quality of the evidence collected.

The majority in the Legislative Council shared our concerns and the bill was defeated in the Legislative Council on 6 July 2011 by a clear 12 to nine vote. In that context my understanding is that the only members of this chamber who supported the government were the Family First members. In the debate the opposition indicated its support for removing the judicial preference if there was assurance of quality. There was no response from the government. Let me stress that that vote was taken on 6 July 2011. By October last year there had been no further action by the government. After 15 months of inaction, the opposition acted. The then Liberal leader, Isobel Redmond, released a bill for consultation at the Police Association AGM on Tuesday 16 October 2012. I tabled the bill in the Legislative Council on Wednesday 17 October and it remains on the Legislative Council Notice Paper.

Having seen the government vacate the field for more than a year, the Liberal opposition proposed reform in 2012 to make police identification not only easier and cheaper, but also better. Feedback from a range of stakeholders suggests that there is broad support for the opposition bill as it seeks to both facilitate photoboards and promote the quality of identification procedures. What has been the government's response to the opposition bill? They have ignored it. The government accused the opposition of a backdown. On 29 November 2012, the government introduced the 2011 government bill in the House of Assembly. It is in an identical form to the 2011 bill, except for the date. The government has been oblivious to the concerns raised.

The opposition's concerns with the 2011 government bill have not been addressed in the 2012 government bill. The bill is identical; the concerns are unchanged. This bill undermines quality in a rush to save costs in police identification. The government's approach would increase the risk that criminals would walk free because of substandard identification and increase the risk of people being falsely convicted.

We support moves to make identification easier and cheaper through greater use of photoboards, but we think that it should not just be easier and cheaper, it should be better. The government law seeks to override the judicial preference for line-ups, which is a key judicial tool to maintain quality in identification. We agree with the government that that tool is not well founded in modern times, but we do not think we should remove a judicial protection of quality without taking other steps to protect quality. Labor is driven by cutting costs, not quality.

In the House of Assembly debate on this bill, the Attorney-General called on the opposition to put down amendments to the government bill. (It will not surprise members that he did it in more colourful language than I did then.) The fact is that we do not need to put down alternatives. Our alternative is already on the Notice Paper. It has been since before this bill was tabled. The government arrogantly ignored it and chose to introduce a bill that this house has already indicated is fundamentally flawed.

We already have a private member's bill before the parliament to make identification easier and cheaper, as long as the identification meets basic quality standards. We seek an outcome. It is the opposition that put this issue back on the parliament's agenda in October 2012, not the government. In the end we are not wedded to the change being wrought by a government bill or an opposition bill, but for change to come the government must engage.

We share the same goal to make identification easier and cheaper. I cannot see why the government would oppose making it more reliable. After all, a lack of quality in identification costs money and undermines justice. Letting the guilty evade identification and contributing to miscarriages of justice costs both the state and individuals dearly.

The opposition bill is structured so differently to the government bill that it is the opposition's view that amendment of the latter to reflect the former is not straightforward. We consider the opposition bill is a better starting point for reform than the government bill. Accordingly, the opposition urges the council to oppose the government bill at the second reading to underscore the fact that this matter will not progress until the government engages this council. If the council chooses to do that, I advise the council that I will seek to have my private member's bill considered as part of the private members' business time on Wednesday 6 March.

The opposition bill has been well received by stakeholders. There have been suggestions for improvement. I will file amendments to that bill reflecting stakeholder input. I urge the government to engage.

The Hon. R.P. WORTLEY (15:44): I rise, as I did on 22 June 2011, to support the Evidence (Identification) Amendment Bill. Who would have thought that such a brief amendment would cause the opposition so much angst? The proposed section 34AB constitutes, in fact, just two sentences. For the benefit of those who have not troubled to read them, it is the work of just a minute for me to do so for them:

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 an issue and evidence of the identity of the defendant is admitted.

That is short and to the point but there are some key words and phrases here. Let us look at the phrase 'evidence of the identity of the defendant is not inadmissible'. Take out the double negative and this means that, if the proposed section is inserted into the act, identity evidence obtained other than by an identification parade (for example, photographic evidence) is admissible. It does not mean that it will be admitted because the proposed section stipulates that admissibility is contingent on the judge's opinion as to the probative value of that evidence.

As I said on the last occasion, photographic and/or video identification is not intended to preclude the identification parade, nor to discourage or detract from its use where indicated. Moreover, photographic and/or video evidence has been used in our state and presently has a high degree of acceptance within the judiciary and the legal profession as relevant and admissible evidence.

Why are forms of identification such as photographs and video desirable? Why do lawyers and the police alike favour their use? It is simple and is because of the following:

witnesses may fear that they themselves will be identified if an alleged offender sees them from a line-up;

there can be problems finding line-up participants who are sufficiently physically similar to the alleged offender;

our diverse society means that on occasion it can be hard to assemble the required number of line-up participants from a minority group;

suspects can change their appearance between arrest and the identification parade;

line-ups can be delayed with obvious consequences, not only for the individual witness and perpetrator, but also for the tenets of justice which we hold so dear;

they can be expensive; and

witnesses in this day and age may not be in a position to spend the requisite amount of time attending the police station, waiting for a line-up and then taking as long as they need to take to select the person they believe to be the offender.

As others have noted, Adelaide's own Professor Neil Brewer has done some groundbreaking work in the area of identification parades and the use of digital images both still and moving. The results of his studies on rapid identification as opposed to more leisurely consideration of identity have been the subject of articles in Psychological Science, The Economist and Time magazine, among others.

Blind Freddy would have to acknowledge that (1) photographs and videos are quickly accessed and viewed and (2) that by their use innocent suspects can be easily excluded. As I pointed out before, they can be adjusted to remove changes in a suspect's appearance between arrest and identification. They can be swiftly and widely distributed to regional or remote areas or, where necessary, across jurisdictions. They are far more cost effective in this day and age than the expensive and time-consuming arrangement of an appropriate cohort for the line-up.

Finally, it is no less true now than it was on the previous occasion when I addressed this bill, that human memory is fallible. Mistaken identification has occurred. That is why a judge's warning to jurors about relying on identification evidence will be neither removed nor watered down by this amendment.

The form of the amendment to be proposed is specifically designed to be technologically neutral, that is, it does not prescribe the technology to be used. The major concern of the bill is that evidence of the identity of a defendant is not inadmissible because it is obtained by means other than the identification parade. The provision envisages immediacy, accuracy, cost effectiveness and enhanced security and comfort for witnesses.

The codification of every aspect of the matters I have discussed is redundant. Surely we can rely on the members of our judiciary to exercise their discretion appropriately and to properly instruct juries in such matters. It is for this reason that I am pleased to support this bill once again and, in the interests of justice, to recommend its speedy passage.

Debate adjourned on motion of Hon. G.A. Kandelaars.