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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 March 2011.)

Ms CHAPMAN (Bragg) (16:03): I rise to continue my remarks in respect of the Evidence (Identification) Amendment Bill. Members might recall that I made a brief contribution on the previous occasion. I will not upset the Attorney-General by suggesting that these will not be further brief concluding remarks. This bill was introduced only last month to remove a common law preference for identification of suspects through a live line-up of persons over other identification methods. I did point out previously my concerns on questions of consultation and the repeated occasions on which the bill has been brought before the house requiring debate without opportunities to consult; and, indeed, notwithstanding the Attorney-General being the new champion of consultation, in fact his complete and utter failure to consult on this matter other than, it appears, with the police department.

However, moving along, I will say that I think it is fair to say for the record that, at the time that this election policy was announced last year, the current Attorney-General was not the attorney-general of the day. Indeed, we were in the era of Atkinson, the age of Atkinson, I think it is fair to say. I am pleased to say that some extinct species never come back and that the dinosaur age is gone. We now have the age of Rau, and I think it is also fair to say that all members expected that this would be an era of enlightenment, that we would have a new regime and expect a very high standard not only on consultation, as the Attorney tells us on a daily basis he is keen to pursue, but also that we would have considered and reasoned debate about issues, and that we would carefully look at matters to ensure that they did not need to have comprehensive reform, or that they were complete duds and that they could be eliminated along the way.

I am disappointed to note that, on this occasion, this is one that is very disappointing in that expectation, and that, unfortunately, we have not concluded the era of announcement of policy and new law reform with one-page press releases. Nevertheless, the opportunity has passed, it seems, for the current Attorney-General to be able to dispose of something—this being a classic example—which has been announced in the heat of an election campaign.

It obviously has some defect, but instead of coming in and saying to the house, 'Look, I have properly consulted on this. I have now got further advice and, although that seemed to be a good idea at the time', and with whatever other meritorious descriptions he could give to his predecessor, he would confirm to the house that this was not the direction which should be pursued and that he had wisely counselled the Premier not to pursue this and to be able to explain to the people of South Australia why he had done so.

Disappointed, nevertheless, we are here to complete the bill. I confirm that, with the extra time to investigate this matter, the opposition will not be supporting this bill. The adjournment of this matter on the previous occasion was at a time when I was discussing the academic treatment of this issue which sits behind the question of removing this common law preference and, indeed, some assessment of what the body of knowledge was on this question of preference for identification of suspects (or model which is used for that) and the reliability of identification practices.

I think that it is fair to say that, in summary at that point, the scant legal basis which was relied upon, I thought, was actually more on our side rather than on the case that the Attorney was presenting, but then we came to Professor Brewer, who, I think it is fair to say, is a well-regarded professor at one of our South Australian universities. I have had an opportunity to look at some of his material. However, this has been comprehensively researched and considered by the Hon. Stephen Wade in another place, and he has been able to come to some conclusions about which he has advised me.

I do wish to say, before I come back to Professor Brewer, that, in addition to that, the Hon. Stephen Wade, and perhaps other members of the parliament (although not me, because I was dealing with the bill at the time in this place), have had the benefit of advice from Mr Tony Harrison, who I keep calling the deputy commissioner, but I think that is wrong. He is an assistant commissioner, yes. He has always been willing to provide briefings to the opposition on a number of pieces of legislation. I note that, in fact, he was recently appointed chair of Minda Inc., so he is obviously continuing service in other categories in the community, and I am sure that he will do a sterling job. But I digress. He was also able to give quite comprehensive advice to the Hon. Stephen Wade on current SA Police practice as to how and when this is applied.

I think it is fair to say that the one thing we all need to be clear on when we are discussing this issue is that the practices of the SA Police Department are not, in any way, reflected by the practices of what one sees on television in those dreadful American programs that seem to educate the population, inaccurately, as to what happens in a number of police and court procedures, and this is not the least of them.

Unfortunately, that is the diet upon which much of population relies, and certainly the younger population, so I think it is important to identify what we do here in South Australia. They use three identification methods. One is the live line-up, where the witness is asked to identify the offender from a physical line-up of people. The second is a photo array, where the witness is asked to identify the offender from a set of photographs. In South Australia they may be in hard copy or they may be on a screen. Thirdly, an informal identification where the witness is asked to identify the offender from a group of people beyond.

As we know, the common law identification of suspects through a live line-up of persons is preferred over other identification methods and this bill is about removing that preference. The Attorney-General advised the house, in his explanation of this bill, that the identification by photograph is not 'inherently inferior'. In briefings, the police, apparently, in advising the Hon. Stephen Wade, have gone further to assert that the unanimous academic opinion is that photo identification is as good as, if not superior to, a live line-up.

Professor Brewer from the psychology department at Flinders University produced an article in 2009 in which he examines:

...results aggregated across studies, as reported in Cutler et al (1994). The conclusions that emerge from these analyses are (1) false alarm rates (cf. false identification of innocent suspects) do not differ significantly for photo and live line-ups, and (2) hit rates are slightly (but not meaningfully) higher for live than photo line-ups.

In a recent unpublished article he summarises the research as follows:

Across a number of controlled studies, the evidence does not indicate that either [live line-up or photo array] produces superior performance in terms of preventing identification of innocent suspects or maximising identifications of the culprit...[At] present, there is no compelling evidence for the superiority of either method. I suspect that this may reflect the fact that witnesses generally simply do not store the rich details in memory that would allow them to take advantage of the additional memorial cues that the live line-up would appear to offer.

I think it is fair to say that the balance of the academic evidence is that the current judicial preference for line-ups over photo array is not supported by the science. The government's proposal, and this is what is important, is to reverse the presumption and presume against the reliability of line-ups. That, we suggest, is not supported by the research and could inhibit further development of the science of eyewitness identification. Professor Brewer's article continues:

Given the above, which method should we prefer? The photo line-up offers a number of significant advantages—provided its development and implementation follow best practice guidelines.

That is a key element of what is being presented here, because while the science is equivocal on the relative merits of the two identification methods, all other things being equal, the factors that make identification more reliable are clearer and more easily achieved with a photo array with those provisos; that is, it is a question of what these factors are.

If they are not up to standard, if they do not follow best practice guidelines, that is why it is so important that we rely on the judge and continue to rely on the judge (who is the responsible person for advising either himself or a jury but in this instance a jury) on the question of the admissibility of the evidence. His job is always to ensure that there is a fair trial, that the matter is fairly prosecuted, but also that, when evidence, whatever it is, becomes unreliable, either the appropriate caution is given or a direction or determination by the judge is pronounced to render that piece of evidence inadmissible. Let us just consider a few of these. Firstly, on the question of construction, whether you are constructing a live line-up up or a photo array, the key attribute of a good set is that every line-up member matches the witness's description of the culprit. Only as a secondary factor is it sufficient that the line-up members should be reasonably similar in appearance.

The example given to the Hon. Mr Wade was, if a witness described the suspect as a male, 35 to 45 years old, heavily built, with piercing blue eyes and shaved head, is it crucial that all line-up members contain the features in the witness's memory when the description was provided? If the live or photo line-up contains a group of highly similar-looking people but only the suspect has noticeably blue eyes, then only the suspect is ever at risk of being chosen.

In a circumstance where we now have very large photo databases, there is an argument that the likelihood of being able to compile a photo line-up that meets such criteria is much greater than that of assembling an appropriate live line-up. In other words, where there is a particular feature (in this case piercing or noticeably blue eyes) in that description, which is the first piece of information to be taken from the witness as to what they might be able to describe of the suspect, then the likelihood of finding that group from the photo database is much greater than being able to go out and find a person who meets that description.

The second is the retention interval. It may appear to members to be common sense, but it is important to note that the longer the interval between the event and the identification, the greater the decay of the witness's memory and the more likely it is that the witness will positively identify an innocent suspect or fail to identify the culprit. Again, if in fact the process of having to assemble and conduct a live line-up causes an inordinate delay relative to the availability of a large photo database that would allow a suitable photo array to be arranged quickly, then logically, there is an opportunity to shorten the retention interval between the apparent crime and the identification test. That is another factor to be considered: if a live line-up is going to cause a delay, that could severely interfere with the reliability of the witness's memory.

The third area is this question of contamination. It is always an issue in respect of evidence to ensure as best as possible that the evidence that is coming before the jury is uncontaminated. Contaminated evidence can be dangerous. It can completely destroy the reliability of the evidence and, of course, make any ultimate decision vulnerable to appeal if that is subsequently successfully argued. So, the identification test administrators can provide verbal and non-verbal cues either deliberately or inadvertently to the witness during a test.

The photo array, which is delivered on a computer, would, arguably, allow for if not ensure dispassionate delivery of the material, clear presentation of the key instruction that the culprit may or may not be in the array, and a precise record of the witness's response, including a record of any witness who did not choose the suspect, including how long the witness took to make the identification and their confidence in the identification at the time it was made. These are aspects of the factors that are important, that we take into account and that can also give us a direction, as the legislators, of where, in certain circumstances, Professor Brewer's assessment comes to fruition and is realised.

In a recent paper, Professor Brewer summarises a range of procedures enhancing quality; for example, no feedback on identification, and sets should only include one suspect. Here again we have a number of practices which are contentious. Professor Ian Coyle of Bond University is one person who has been brought to the attention of the opposition, via the Hon. Stephen Wade's investigations. It appears that he disputes Professor Brewer's preference for sequential over simultaneous line-ups. This is again an aspect which is important to consider.

In a circumstance where there is conflicting academic treatment, in a circumstance when the practitioners, who also work in this area (namely, through the Law Society of South Australia, the legal profession) and other individual counsel (Lindy Powell QC is one who I have referred to already in the previous debates) line up and tell us that live line-ups are able to provide more reliable, or better evidence, than other forms of identification, then they cannot be ignored, especially in a circumstance where no case has been presented to the parliament (through the Attorney-General's contribution) of any injustice and no judgement, including any obiter dicta, which supports the basis upon which the government is going down with this bill. I would suggest that the parliament should not pass this legislation, and that we leave this not as a matter which is determined by what is convenient or cost effective for the SA police force, but one which remains as it is for determination by a judge.

I just want to say at this point that the Attorney-General says, 'Look, we're not actually removing live line-ups as an option here. We're not outlawing them or removing them as an option,' but we all know in reality that any law enforcement agency that is under the pressure of financial cuts, or any financial accountability, obviously they are going to take the cheaper option. It is not acceptable to the opposition that we either place them in that position of having to do so or weaken the justice system and protection of the criminal law system by doing so.

I think the government's eagerness to bring this in, after an election announcement, to extract out from the science and academia the reason to increase the use of photo arrays without addressing the more significant issues, which affect the quality of the identification tests, demonstrates that it is the government that is actually keen to drive a reform that will give it a cost benefit—a cost reduction—and not a commitment to the quality of justice.

Another matter which is being considered by the opposition is that it would be open for the government to try to run a test case in the courts to seek judicial reconsideration of the law around identification testing. That might be a way of providing a better development of law in this area, if one is either justified, appropriate, or has any merit at all. However, we do need to always consider if there is evolving science, and that is to be acknowledged. In this instance, we suggest that the proposed reversal of the presumption is ill-founded and that the parliament should be cautious in controlling a judge, in particular, in what they should say to a jury. So, we will not be supporting this.

I just want to raise one other aspect, and I am not certain whether the Attorney has looked at this question, but the Commonwealth Crimes Act 1914 prohibits the use of photo boards unless it would be unreasonable in the circumstance or unfair to the suspect to conduct an identification parade. And so, we would like to know if the government has considered whether that produces any inconsistency or any problems when state courts exercise federal jurisdiction, if this bill were to pass.

Further, section 3ZO of the Commonwealth Crimes Act 1914 relates to the use of photo boards and lays down a series of requirements to promote quality. In relation to each requirement, I think it is reasonable for us to identify—and perhaps the minister already has—whether it is a requirement which officers of SAPOL using photo boards follow. These, as I understand, are as follows:

(a) the constable must show to the witness photographs or pictures of at least 9 different persons;

(b) each photograph or picture of a person who is not the suspect must be of a person who:

(i) resembles the suspect in age and general appearance; and

(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;

(ba) the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;

(c) the constable must not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;

(d) if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;

(e) the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;

(f) the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;

(g) the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;

(h) the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.

I think we need to know whether these are standards that are applied here when they use photo boards, as they are quite prescriptive under the Commonwealth Crimes Act. Also, in relation to the jury warnings themselves—after all, that is what this bill is really focussed on. Section 3ZO(3) of the Commonwealth Crimes Act 1914 states:

(3) If:

(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and

(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and

(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and

(d) the photograph or picture is admitted into evidence;

the jury must be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.

Again, given that relates to judicial warnings under the proposed section 34AB, has the government considered the inclusion of any similar warning in this bill? They are matters that, amongst others, are of concern. However, on the basis that the government is pressing ahead with this and, notwithstanding that we are not prepared to support the bill, I ask whether they are matters that they would consider.

I do not propose to address the house any further during the second reading of this matter. The Attorney has given us a little extra time to consider this during the adjourned period and the matter will ultimately go to another place, which will provide some extra time again, so we will be able to receive some answers on those matters raised and maybe reconsider the position. However, on the information provided to us to date, the answer is no. I will not hold the house up any further and indicate that I will not be asking to go into committee.

Mr VAN HOLST PELLEKAAN (Stuart) (16:31): As always, the member for Bragg has outlined the opposition's position very thoroughly and there is no need for me to go over that. I will add one more perspective from a member representing country and remote areas. The idea of removing the preference for a line-up, essentially, as the member for Bragg mentioned, allows for quite a few other methods—and typically much cheaper methods—to be used.

I certainly have no objection whatsoever to trying to save costs, but I do fear that, when it will be much cheaper to use alternative methods in more distant places, the temptation will be greater and greater to do so. I think about Port Augusta. We have an enormous number of people from all over the north, the north-east and the west of the state who come to court in Port Augusta. It is an exceptionally well set-up facility, physically.

As people here may know, there are special sound systems that allow people—particularly Indigenous people—to be a bit more comfortable and find it less confrontational, and to speak very quietly and still be heard by the rest of the people so that they do not need to change the way they operate. It is good that that helps with better collection of evidence. However, with improved technology—and we all use it all the time; the ability to transfer images digitally—if the preference for a line-up disappears, it is quite logical that these other methods will be used more and more and, for times when a line-up would be more appropriate, it may not happen.

I point out that there is a lot missing with photos. I think it would be fair to say that people who have been involved with sport, who work outdoors or who live outdoors, pick up a lot more from the physical presence of a person than they can in a photo. Having the ability to have somebody turn around or take a few steps—that sort of thing—is a significant identification opportunity for people that you cannot get from a photo.

I think, again, particularly for Indigenous people—and obviously I cannot speak on behalf of Indigenous people, but my experience with Indigenous people living in remote areas of the state is that they are far more capable than non-Indigenous people when it comes to visual identification and picking up all sorts of finer details.

I think that is because of living, working, having a much more outdoor life than perhaps the average person sitting in Adelaide, who is used to sitting and looking at images on screens. It might well be that that person in Adelaide can pick up a lot more on a screen or a photo or some other means of identification than a person from outback South Australia would. I am very concerned that the very best way of trying to identify people, suspects, or potential criminals could be watered down if the preference for using a line-up does not remain, because I think if the preference for using a line-up does not remain, quite naturally we would move to other means, and I think people could miss out on what for many South Australians would be a much better way to actually make a positive identification.

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) (16:35): Can I start off by thanking all those who made contributions in the debate. There are a couple of issues here that I would like to briefly respond to, because I think I probably have to. The first one is the question of notice, which is a matter that was raised in particular by the honourable member for Bragg. All I can say about that is that this, as I indicated before, was a matter that was the subject of a policy statement before the last election and as such was not hidden in any way. If her criticism of me is that she had not seen the precise wording of the bill—although she could not have been surprised by it—then that is something I will take on the chin and I will endeavour to do my utmost not to be as remiss again in the future.

However, the concept itself was nothing new. The point that was made about the idea that we can jettison things that are the subject of promises at an election; well, that is a track that was explored by the Hon. John Olsen after the election in 1997, and I do not think that was well received by the people of South Australia.

The Hon. M.J. Atkinson: It was also explored by the Treasurer, who said he had the courage to jettison things that were election promises.

The Hon. J.R. RAU: Yes. The former treasurer, yes. I think one should be very, very reluctant indeed not to bring forward to the parliament something that has been the subject of a promise made at an election, and I believe that unless there are extraordinary supervening circumstances, or reprehensible circumstances, or whatever Malcolm Fraser's—

The Hon. M.J. Atkinson: You are showing your age now.

The Hon. J.R. RAU: Yes. Whatever his particular formulation was. Unless that occurs one should not be going around discarding promises. That deals with those two preliminary matters.

I must say, the honourable member's contribution today was far more pithy—pithy, I think is the word that springs to mind—than in her contribution last week, which was wide-ranging and discursive and circumlocutory. In any event, today I had a far better sense of what the honourable member's points were and I thank her for that.

She made a remark today that I think has contained within it the seeds of the problem that we have here. She said that in effect what we have done is reversed the previous position. Actually, that is not the intent nor the wording of the bill. If I could just take honourable members to the bill itself, which is 34AB, subsection 1. That says, and I quote:

In a criminal trial, evidence of the identity of the defendant—

and here are the important words—

is not inadmissible merely because—

I will say that again, because I think they are important words—

is not inadmissible merely because it was obtained other than by an identification parade.

So that does not mean that identification parades are second-rate methods. It does not mean that photographs are to be preferred to identification parades. It says simply that the identity evidence is not inadmissible because it was obtained by another method. After that, the provision is actually silent and certainly does not say that there is a presumption against identity parade evidence in favour of photographic evidence, so that is not the case. If that is troubling members of the opposition, then I think they can sleep comfortably tonight.

There were other matters raised by the honourable member and I would like to address them. Given the fact that the provision does not seek to reverse anything but to simply remove any presumption against validity of an alternative method, we are then confronted with the work of Professor Brewer who says that the identity evidence provided by virtue of a photograph is no worse than, and possibly better than, an identity parade. On the face of it—unless his research is flawed or lacking in voracity in some way, and I have not heard that argued—basically it says we are on safe academic ground in at least levelling the playing field between photographic and line-ups, and let the circumstances play out as they will in each particular case.

I am thinking of a couple of examples which relate to contributions that the honourable member for Bragg made. When we were here a week or two ago—and she did speak at length about many things—she speculated on a number of scenarios. One of them, I think, was a person with tattoos being photographed or being in a line-up, and it reminded me of the vexing problem that walked through the front door of the member for West Torrens one day. A constituent of his had been very unfortunate because he was a person who liked to call himself a skinhead and he was proud of that and he wanted to have the word 'skins' tattooed on his forehead, as one often does. Unfortunately, he made a mistake and tattooed on there 'sniks', which was okay when he was looking in the rear vision mirror but not very good otherwise, and he obviously had a complaint that he wanted to take up—as you would—with your local member of parliament.

It occurred to me that this gentleman, should he ever come to the attention of the law—and I am sure he would not—would present a problem, whether he was in a photographic line-up or otherwise because, to follow up on the honourable member's questions, do we airbrush out the 'sniks' or do we leave the 'sniks' there? Or, more importantly, do we add 'sniks' to everybody else, and then how authentic does that become? These are deep and vexing questions.

Whether you are using a line-up with people with heavy pancake make-up on, or with textacolour 'sniks' written on them like that chap who pretends to be Chopper Reed, whatever you are doing, it is going to be a problem. In the case of the 'sniks' gentleman, I think it would be harder to cover up the 'sniks' in a live show, given all the make-up requirements—I do not know what the SAPOL make-up situation is like in the average local services area, but anyway, it could be difficult. So, that is a very difficult problem and I have to confess I do not know the answer to that, and I believe that the honourable member for West Torrens did not know the answer to that gentleman's problem either, although he did try his best to do something—

The Hon. M.J. Atkinson: Another MP who has done nothing for their constituents.

The Hon. J.R. RAU: No, he tried. The honourable member knows that the honourable member does his best but, on this occasion, he could not help him, which was a considerable problem. I have been doing some research since last week—

Ms Chapman: You needed the chance.

The Hon. J.R. RAU: I needed the chance and I have done a bit of research, and I wanted to draw the honourable member's attention to some of the dangers associated with live line-ups. The honourable member today talked about the fact that most people live on a diet of television-inspired views about how the justice system works, and it is regrettable, even though it is probably Perry Mason's fault that I went on to study law.

Mr Venning: So it's his fault?

The Hon. J.R. RAU: He has more in common with reality than some of the more contemporary ones where you go up and lean against the bench and chat to the judge and you go off into their rooms and have an argument with them, and things like that. It might happen in the United States but it does not happen here, as the member for Bragg knows full well. We are far more—

Mr Venning: Civilised.

The Hon. J.R. RAU: —civilised.

An honourable member interjecting:

The Hon. J.R. RAU: 'Formal' is probably a better word. Anyway, the point I was going to make is that, after listening to all that, I was reminded of that marvellous film The Usual Suspects. I am sure members here must have seen the film but, for those who have not, a brief overview might be sufficient because I think if I read the dialogue directly it might not be parliamentary. The overview is basically this.

A group of characters is swept up, so to speak, off the street and called into a police station and they are stuck in a room together. These fellows had never met each other before and they are put into a room together and the police then put them through this line-up process. In the line-up each of them has to come out, stand in front of a two-way mirror and recite some words. I will not give the exact words but it is something to the effect of, 'Can you please give me the keys?', although it is a bit more flowery than that. One of these fellows comes out and says in a matter of fact way, 'Can you please give me the keys?' Another bloke comes out and is more dramatic, 'Give me the keys!'

The important point is that, after all this goes on, the most important figure in the show, who is Kevin Spacey (his real name), whose character in the film goes by the name of Verbal, sums it up very well when he says at some point, 'It was rubbish,' and I am quoting now from the actual film text. He said, 'The whole rap was a set-up. Everything is the cops' fault.' Here are the important words, and this should be etched in everyone's minds: 'You don't put guys like that in a room together. Who knows what can happen?' Of course, we all know what happened. These fellows got sucked in by a bloke called Kobayashi, who was working for Keyser Söze; and, in the end, there was a terrible conflagration on the wharf. I have seen the film many times and I still do not know whether or not Kevin Spacey was Keyser Söze. I still do not know. Anyway, the point is: there are dangers in line-ups. That was the long way to get there.

The DEPUTY SPEAKER: I am slightly confused. There are dangers in line-ups?

The Hon. J.R. RAU: There are dangers in line-ups, which would have been avoided had these gentlemen simply been photographed and shown. Perhaps they never would have come together in that terrible, catastrophic fashion.

There is another point about identification evidence that I picked out which I thought the honourable member might know. When Captain Willard was given the dossier about Colonel Kurtz in Apocalypse Now and he had to go through it, he thought it was the wrong dossier because all he heard was the man's voice. He said, 'I heard his voice on the tape and it really put a hook in me but I couldn't connect up that voice with this man,' because he was looking at the photograph, but he had the tape—the tape was confusing him. We are not talking about that. We are talking about photographs and live people.

I thought I would cover a lot of those points because I thought they were left a bit open after the honourable member had made her contribution.

Members interjecting:

The Hon. J.R. RAU: Actually, it was the great relief of having come to the end of what had been a very thorough contribution from the member for Bragg that has motivated this. The other thing was that the honourable member raised questions about the Crimes Act, and I think they are fair enough questions, because, as she points out, under the commonwealth Crimes Act there are particular requirements in relation to identification evidence, and that is true.

However, members might be comforted to know that, first, commonwealth Crimes Act matters are generally prosecuted by the AFP not by SAPOL; secondly, the AFP is obviously geared up to do what it has to do under the commonwealth Crimes Act; and, thirdly, in relation to matters which are commonwealth crimes, then obviously the commonwealth Crimes Act would apply even if it is being dealt with in the state court. But, of course, the officers who would have been investigating that matter would most likely have been customs officers or AFP people, or someone else who would have applied those particular rules.

I am advised that there is no direct conflict between the commonwealth Crimes Act requiring those provisions to commonwealth crimes to be dealt with in that way and the state having a different regime; and, indeed, that is already the case because the state regime is not articulated in this form now, nor is it articulated in the same form as the commonwealth Crimes Act.

I think that the honourable member can be, as her former federal leader urged us all to be, relaxed and comfortable about that. That then brings me to another point, and that is one that seems to be overlooked a bit in all of this debate, that is, that in most instances criminals are not convicted on the basis simply of identification evidence at a line-up, or at all. What would normally happen, I would suggest, is that, okay, you might have the usual suspects lined up or the photographs shown. The witness would say, 'I think it's photograph No. 2', or 'I think it's person No. 2.' The police would then arrest that person and make investigations. For example, they might take a DNA sample or go to their home and seek to recover objects, materials or samples of other stuff that might connect that person with the crime, speak to witnesses and see whether there are other people who could identify them, etc.

It would be an extremely rare case where the only compelling evidence upon which a person could be convicted would be the identification evidence at that initial identification point. Now, I realise that is not always the case, because, as all of us know, the jewellery robbery at the beginning of A Fish Called Wanda was witnessed by a lady with three dogs. Do you remember that?

An honourable member interjecting:

The Hon. J.R. RAU: It was a great film.

Ms Chapman interjecting:

The Hon. J.R. RAU: No, I am not going to try to cover it, but poor old K-k-ken had to go out and find a way of dealing with that. So, Michael Palin, who was Ken, his title in the film was 'Ken'; Michael Palin, though, was the gentleman. He often travels in balloons and stuff as well. Anyway, he had to get rid of this lady, and every time he tried to get rid of the lady he actually killed one of her dogs.

The poor woman was actually an animal lover, and, in the end, when he got the last dog, she died of a heart attack, not because of anything he had done to her but because she was broken-hearted because she had lost her dogs. That was an unusual case and we should not expect that sort of case to be common in the criminal courts.

I am not going to ask for an official response from SAPOL about this, but I believe this is uncommon. Normally we get DNA, or we get someone else coming forward, or we find the goods in the person's property, or there is some other way of identifying—

Ms Chapman interjecting:

The Hon. J.R. RAU: Or they confess. Indeed, they confess. Look, there are just so many other ways that it can happen. The concern in any particular case that the difference between a photograph and a line-up is going to be in any way prejudicial to a particular defendant (even assuming that line-ups were superior to photographs) is so small that it could almost be discounted, although, as I said, in that particular film it was relevant.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, indeed. I am very pleased that the opposition has given a lot of thought to this. As I have tried to explain, I think that, based on the authorities to which I have referred (namely, A Fish Called Wanda and The Usual Suspects) these give some indication as to why, and perhaps during the gap between the chambers the opposition could be a little more relaxed about this.

In how many cases is the identification evidence, however it is done, ever going to be determinative of guilt or innocence? The answer is probably hardly ever. In those particular cases where it is the determining evidence in the matter, it is important to know that the value of line-up evidence has not been reversed with any other sort of evidence, it has simply been made so that there is no adverse inference to be drawn because it is not a line-up. That does not mean that you do not have line-ups; it does not mean that photographs are worth more than a line-up. All of these situations—as I mentioned before, with the constituent who went to the member for West Torrens—throw up problems anyway, which, whether it is a line-up or a photograph, are difficult to work your way through. I do not believe that the commonwealth provisions in the Crimes Act are going to be of any great concern to us, for reasons that I have given.

Underpinning all of this is the academic work by Professor Brewer, who has made it pretty clear that in his view this evidence is of no lesser quality than the evidence of a line-up. All this is seeking to do is to put into legislative form the professional opinion of Professor Brewer—that is all.

Ms Chapman: It's his fault.

The Hon. J.R. RAU: It is to his credit that he has brought this important matter to our attention. I pay tribute to the honourable member for Croydon, who, obviously, spent time before the last election studying, amongst many other things, the works of Professor Brewer. He had consultation with SAPOL and, in the end, this matter came out of it and it is based on sound academic material.

If what happens is that members opposite are able to discredit Professor Brewer's professional opinion by demonstrating that for some reason he has not done proper research or that he is regarded as being an unreliable expert person, then that is a different matter, but I do not understand that any of the words that we have heard about this are to that effect. Everybody seems to think the world of Professor Brewer, and so they should. I would urge members opposite to consider my remarks.

Bill read a second time.

Third 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) (16:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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