EVIDENCE (IDENTIFICATION EVIDENCE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2013.)

The Hon. S.G. WADE (21:04): I rise to indicate that the opposition supports the Evidence (Identification Evidence) Amendment Bill 2013. In March 2011, the government introduced a bill to remove the common law judicial preference for in-person suspect line-up parades over other forms of suspect identification. The opposition opposed the government bill on the basis that it did not have sufficient regard for the quality of the evidence collected, and the bill was defeated in the Legislative Council on two occasions.

I tabled an alternative bill in the Legislative Council on Wednesday 17 October 2012. As a result of negotiations with the Attorney-General, a government bill, Evidence (Identification Evidence) Amendment Bill 2013—the bill we are discussing here—was introduced into the House of Assembly. Agreed words were incorporated, and this bill has been received by this house.

It is gratifying to see that we have been able to come together on the core elements of the bill, and I will not dwell on the time and money wasted by the government's failure to engage in a collaborative legislative process earlier. But I have enough concerns about the regime we are legislating that I will dwell on my concerns for the future. The story of the development of this bill—sorry, Mr Acting President, I am not sure which conversation I am having.

The ACTING PRESIDENT (Hon. K.J. Maher): I offer protection to the Hon. Stephen Wade from the Leader of the Opposition who will take his conversation elsewhere or sit down. Thank you. So protected.

The Hon. S.G. WADE: I appreciate your protection from at least one group and I am glad the other two have dispersed. The story of the development of this bill is the story of two countervailing tendencies in government. First, there is an eagerness on the part of the authorities to free themselves of legal presumptions on identification evidence which are not substantiated by scientific evidence. On the other hand, the authorities seem reluctant to accept the discipline of scientific rigour in providing assurance of quality in identification processes.

Since March 2011, the government has been singing the praises of Professor Neil Brewer and his work on identification evidence research. The opposition does not demur from the government's high regard and I certainly do not personally because he is my wife's boss. Professor Brewer is a Matthew Flinders Distinguished Professor at Flinders University, South Australia, and a leading world expert in this area. Yet it was two years after that March 2011 legislation that the government started revising the police general order in relation to identification evidence. I understand that that work is continuing but it is baffling that it has taken so long to even get started.

A key concern of the opposition has been to ensure that we drive quality in identification evidence. We consider the imposition of a statutory requirement for an audiovisual record is a major advance in terms of quality and, to give credit where credit is due, the government very early on in this process did accept the value of audiovisual record. Considering the busyness of these discussions, it would actually be a shame if we overlooked the significance of that development in terms of the development of evidence practices in South Australia.

If I could take the opportunity to quote from advice given to the parliament through the Aboriginal Legal Rights Movement which came from Mr Ligertwood, an Adelaide based lawyer who is an Australian expert on evidence law. He provided this comment to ALRM when he was commenting on the government's original report in relation to the Evidence Identification Amendment Bill 2011 and he said:

But while the report recognizes the fragility of identification evidence in proposing s 34AB(2), it makes no further attempt to protect the interests of the presumptively innocent accused through attempting to regulate the process whereby a witness identifies a suspect. Yet it is universally recognized that the reliability of such identification depends upon the police employing procedures that seek to ensure witnesses are not in any way prompted or encouraged, consciously or unconsciously, to identify a particular suspect, but rather are asked to identify the suspect from a range of persons amongst whom the suspect does not stand out in any particular way.

Where an identification parade is held the presence of the accused and his solicitor and the probable videotaping of the identification parade ensures that the accused is in a position to challenge police evidence relating to this process of identification.

Where the identification is made in the absence of the accused through photographs or videos shown to a witness, in the absence of evidence independent of the police, it is very difficult for an accused to challenge the reliability of the identification process.

Mr Ligertwood was highlighting the value of videotaping in terms of ensuring that appropriate standards are maintained and that where they are not observed that the implications of them can be worked through.

Going beyond videotaping, the opposition considers that we can do more to support quality in identification evidence than just requiring audiovisual records. The opposition has previously proposed other statutory requirements on identification processes and we remain interested in that approach but the government is not. We welcome the revised general order being developed and the fact that it will incorporate best practice but we are concerned that police and the courts may often find it difficult to differentiate the wood from the trees. What may seem a merely procedural element to police and courts may scientifically be fundamental to its quality.

It was my privilege over the past weeks to meet with Professor Brewer. Whilst he was not in a position to give me a copy of the draft general order, he suggested to me some key elements of identification procedure that he felt were very important to protect quality. I want to highlight a couple of them to try to illustrate the point that what might seem a procedural requirement to a police officer or to the courts may from a scientific point of view be fundamental. One of them, for example, was:

Accompanying the photos (if a photo-array) which a witness may point to should be two other options to point to—one should say Not There and the other Don't Know. Likewise for a live parade, there should be two equivalent and explicit options that serve the same purpose.

A police officer reading such a requirement in a general order may read it as merely procedural. Professor Brewer says that it is far more than a mere formality, it is a key element supporting quality. Without these two cards—that is, 'not there' and 'don't know'—witnesses are under more pressure and more likely to make an identification where they are not confident and when they are under the misconception that the suspect is present. The risk of false positives significantly increases. Perhaps the most fundamental guidance you would want the police to observe is respecting the witness description, and this has come up in previous discussions on similar bills. As Professor Brewer put it:

When selecting the foils to accompany the suspect in the line-up, the first step is to ensure that all foils match all features of the witness' description (e.g., white male, 20-25 years, shoulder length straight blonde hair, green eyes, small mole on right cheek); once that is done, attempt to ensure reasonable similarity of the foils to the suspect.

However, I suspect the common-sense understanding of most police officers and for that matter most watchers of crime programs on television is that it is not the similarity of the witness description that matters, it is the similarity of one suspect to the other.

The opposition would like to see more steps taken to support quality in the act or in the regulations, but in the context of this act that was not possible. What we are proposing is that the bill be amended to allow for standard-setting regulations. It is not our view that it should require that such regulations be issued, and I fully accept that this government is not likely to put down any regulations beyond audiovisual recording. However, we consider that there should be a capacity for a future government to do so.

Section 2(b) in the legislation would mean that any evidence that would otherwise be excluded for non-compliance with the regulations may nonetheless not be excluded if it is considered to be in the interests of justice that it not be excluded. The opposition welcomes the fact that the government readily agreed to a review and we would suggest that the value of specific standard-setting regulations may well be matters that might be considered in a review in 12 months' time. I hope that the council will support that amendment in the committee stage.

I also would stress that the opposition is not being prescriptive about the nature of the regulations. It is certainly not our expectation that the regulations at any time would replicate the general orders. There is hardly a point in doing that. However, the regulations could highlight the elements of the general orders which are most important to quality, and I have already mentioned about 10 that Professor Brewer suggested to us were fundamental to quality.

Consistency between the general order and the regulations could be maintained by the regulations being expressed in general terms or, for that matter, by specific references to provisions in the general orders. But let me stress the regulations are completely in the hands of the government, and I accept that, as I said before, this government is likely to focus on an audiovisual related regulation if this council was to accept the amendment that the opposition will move.

Beyond the act, I would urge the government to look at opportunities to enhance quality through computer-based delivery of photoboard identification. Certainly, Professor Brewer highlighted the very high value, in his mind, in computer-based delivery. Computer-based delivery gives you the opportunity, with both visual prompts and audio prompts, to have a highly controlled presentation in terms of what verbal instructions are given to the person and how the images are displayed.

There is scientific debate about whether sequential or concurrent image presentation is the most effective, but whatever the preferred model is, the computer can provide that for you. It can also provide you with the capacity to record data. For example, it might tell you how long after an image came to the screen the person activated the keyboard to indicate that it was their identified choice. It also gives you the opportunity to record confidence factors.

My understanding is that Professor Brewer and other researchers in the area are increasingly interested not just in the choice that was made, but how long it took for that choice to be made, and also the level of confidence with which the person made that choice. Professor Brewer would say it is not always the case that a person who takes half an hour to make a choice is wrong, but they are less likely to be right. If a person makes a rapid choice with a high level of confidence, that would provide more reassurance to those who want to rely on that evidence.

Professor Brewer is very clear that, if the whole procedure was done on the computer without any human interaction, all of the key quality elements would be easier to control. The government and the opposition, unlike other members of this house, have to worry about making the budgets match the aspirations, and we in the opposition appreciate that technology is not cheap, but I would be interested in the government actually making an assessment of the net cost benefit of a rollout of computers in this area.

For example, if you were to have a centrally-based database of images and a series of what I would have thought would be fairly basic computers or laptops around the state, you could easily deliver sets of images to officers wherever they are working in the state, transport images to them, and also get the responses back centrally. I suspect that, considering that we are hopefully going to avoid unnecessary line-ups through this legislation, the savings from that fact alone would help fund these sorts of facilities.

Certainly, in my discussions with the police over the life of these bills, there was also interest in the idea of what I think are called evidence suites. Apparently, they are already being used in the United Kingdom, and that is where you have a, shall we say, controlled environment; not just a computer screen, but perhaps a room in which line-ups and photoboards are also conducted. Again, it is based on the idea that if you have a controlled environment, whether that is a physical environment or a computer, that can help control the quality elements.

Again, I thank the government for the work, particularly in more recent months, to come to an agreed set of words, which I believe will enhance the Evidence Act and identification procedures, and not only protect but also enhance the quality of identification evidence that is produced and presented to our courts.

By way of conclusion, if I could thank some people in particular. Obviously, I cannot go past thanking Professor Brewer. I know that he has been very generous with his time, both with the government (the Attorney-General's Department and the police) and also with the opposition. The input of experts is often invaluable. I would also like to particularly thank the Aboriginal Legal Rights Movement and, through their work, the way they engaged Mr Ligertwood on these issues. On a personal level, if I could thank the Hon. Kelly Vincent. I appreciate that she had a strong interest in this area and it was very helpful to be able to work through the issues with her staff and herself. So, with those remarks, I commend the bill to the council and look forward to discussing the amendments at the committee stage.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (21:20): I do not believe there are any further second reading contributions, so I would like to thank honourable members for their support for this bill. The core proposal of the bill is to put photograph identification evidence on an even footing with identification evidence obtained by way of an identification parade. As set out in the second reading, line-ups require substantial police resources. Amending the legislation will have a number of advantages, including increasing the efficiency of police investigations.

This bill is the government's third attempt to implement this policy. The first two attempts failed in this place. The government has listened to the concerns expressed by members in this place about the content of the first two bills, in particular ensuring that identification parades are carried out in accordance with statutory safeguards. Members will be well aware that the shadow attorney-general, the Hon. Mr Wade, introduced a similar bill in this place in October 2012. That bill, amended by further amendments from the Hon. Mr Wade, passed in this place on 25 September 2013.

The bill now before us in this place incorporates elements of the government's approach to this issue and elements of the opposition's approach. This was achieved via amendments to this bill moved in the other place. A new section 34AB(1) has been inserted that adopts elements of the government and opposition bills. This section now refers to inadmissibility of evidence and the ability to exclude evidence in the exercise of the court's discretion.

The bill previously referred to 'the identity of an offender' and 'the defendant'. The opposition's bill uses 'offender'. After discussion with parliamentary counsel it was agreed that the phrase 'the identity of a person alleged to have committed an offence' would be adopted. The opposition bill adopted a definition of 'identity parade' rather than the definition of 'identification process' used in the government bill. The opposition's definition has been adopted.

Finally, in the interests of securing the passage of the bill through parliament, a review clause was inserted into the bill and I am advised that further amendments have been filed in this place by the Hon. Mr Wade and the Hon. Ms Vincent, and the government will be supporting those amendments during the committee stage. So, I hope that both the amendments of the Hon. Stephen Wade and the Hon. Ms Vincent will be agreed to. I look forward to the committee stage being dealt with expeditiously.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Amendment No 1 [Wade–1]—

Page 2, lines 20 and 21 [clause 4, inserted section 34AB(2)(a)]—Delete paragraph (a) and substitute:

(a) —

(i) an audio visual record of the identity parade is made and kept in accordance with the regulations; and

(ii) if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or

I took the liberty in my second reading contribution to argue the case for it so I have, if you like, shown respect to the record. I thank the minister for her indication of the government's intention to support the amendment, in which case I seek the support of the committee as a whole.

The Hon. G.E. GAGO: The government supports this amendment. The amendment future-proofs the legislation in that it provides for the ability for another set of regulations to be proclaimed in relation to the procedures that should be undertaken when obtaining identification evidence from an identification parade. We support this amendment.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. K.L. VINCENT: I move:

Amendment No 1 [Vincent–1]—

Page 3, line 38 [clause 5, inserted Schedule 1, clause 1(1)(b)(ii)]—Before 'cultural and linguistic diversity' insert 'persons of'

Amendment No 2 [Vincent–1]—

Page 3, after line 38 [clause 5, Schedule 1, clause 1(1)]—After paragraph (b) insert:

Example—

Ensuring that the procedures to be followed are accessible to persons referred to in paragraph (b).

The intent of my two amendments is very simple, particularly the first. It merely corrects a drafting error so that it reads 'people of cultural and linguistic diversity' rather than simply 'cultural and linguistic diversity'. It is always good to remind ourselves that we are talking about people, so I doubt there will be any objection to that.

The second amendment is also very simple and I hope it is one we can all agree to. It simply seeks to ensure that part of the review process of the legislation takes into account ways that the legislation could be improved to allow for accessibility of evidence to people with disabilities and people from cultural and linguistic diversity. We have quite deliberately left the wording of that amendment open so that it reads 'ensuring that the procedures to be followed are accessible to persons referred to in paragraph (b)', i.e. people with disabilities and people of cultural and linguistic diversity, because we do not want to be prescriptive so that we can allow for the best accessible technology of the day to be used.

There are many examples of what that could be. The Hon. Mr Stephen Wade has mentioned a few of them in his contribution this evening and at other times. It could be allowing photographs to be displayed on a computer that could be easily accessed by someone with a variety of disabilities and so on, but I think it is important not to be too prescriptive in this sense. It is a very simple amendment and one that I hope will have the support of the committee.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (21:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.