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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-22 Daily Xml
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EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 June 2011.)

The Hon. S.G. WADE (11:55): On the last occasion that the council was considering this bill, I made a substantial part of my second reading contribution, and I continue that contribution now. In having made comments about the need for the legislation to draw on the wisdom that can be discerned from scientific research, I would not want to give the impression that the science of identification has no unanswered questions.

In fact, I have received very useful input from Professor Ian Coyle of Bond University. Whilst I understand that he would concur with Professor Brewer on a whole range of issues, he demurs on the issue of simultaneous and sequential line-ups. As I understand that issue, that is whether a person receives a photo array in one set on one board or whether the images are sequenced, perhaps using a video screen. My understanding is that Professor Coyle prefers simultaneous and Professor Brewer prefers sequential.

The fact that there are some contested issues in the science of identification does not mean that we should not seek to harvest best practice from the science, only that we should be wise in its application and flexible to incorporate future learnings. One thing is clear from briefings from SA Police: SAPOL practice does not follow best practice, as outlined by Matthew A. Palmer, including the key Brewer criteria, namely, that a line-up, first and foremost, matches the witness's description of the suspect. The government wants to preach Brewer but to contradict any preference for live line-ups. It does not listen to the whole message.

Two key submissions from legal stakeholders emphasise the need to drive standards in identification procedures. The submission from the Aboriginal Legal Rights Movement included comment on the bill from retired academic Mr Andrew Ligertwood, a leading Australian expert on the law of evidence. I thank the Aboriginal Legal Rights Movement for facilitating this comment, and I read his comments in full, for the information of honourable members and for the sake of the record. The comment is headed 'A Comment upon the Evidence (Identification) Amendment Bill 2011':

1. The purpose of this Bill is to enable police to identify suspects in every case by means other that an identification parade. So long as the judge is of the opinion that the evidence is of sufficient probative value to justify its admission the evidence by other means may be admitted (proposed s 34AB(1) Evidence Act 1929). If admitted the judge must not suggest that the other means is a less reliable form of identification that an identification parade unless the judge is of the opinion that it is in the interests of justice to do so (proposed s 34AB(3)). While making this reform the Bill takes the opportunity to propose enactment of s 116 of the uniform evidence legislation to demand the jury be informed of the need for caution before acting upon any identification evidence (s 34AB(2)).

2. The report accompanying the Bill makes it clear that its purpose is to implement a government election promise to conserve police resources by doing away with identification parades, noting that 'line ups' require substantial police resources often requiring up to 10 police officers and up to 60 hours of police time to arrange, that technology is now available to enable identification by picture and video presentations using lap-top computers, and that such picture identification relieves victims of the trauma of having to confront the offender in person again.

3. But while the report recognises the fragility of identification evidence in proposing section 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 recognised 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.

4. 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.

5. 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.

6. In many cases identification parades cannot be held as suspects have not been identified at all, or cannot be found, or may be unwilling to participate in such a parade. Consequently, as recognised in the report, picture identification is used routinely by police; and the evidence resulting will only be excluded if the accused can persuade the court to exercise its residuary discretion on grounds of fairness or public policy.

7. There is strong empirical evidence that properly conducted picture or video presentations can be as, or even more, reliable than a properly conducted identification parade. This is recognised in Winmar v WA (2007) 35 WAR 159.

8. The problem is to ensure that the presumptively innocent accused is in a position to challenge effectively identification evidence obtained other than by an identification parade. Recognising that the trial judge has a discretion to determine whether any process of identification used is of sufficient probative value to justify admission is unlikely to provide effective protection in the absence of independent evidence of the process employed.

9. It is submitted that, given the universal recognition of the dangers of acting upon identification evidence and the need to protect an innocent accused, the legislation should, first, regulate the procedures by which identifications are conducted and, secondly, to ensure that the procedures employed can be effectively challenged, demand that any identification of a suspect by a witness be videotaped by police ([compare sections] 74D and 81(3)(e) Summary Offences Act).

10. The effect of the legislation is to enact the parity of all forms of identification. While empirical evidence supports that picture identification may be as or more reliable than identification at a parade, this conclusion depends on the precise procedures used and the ability of the accused to challenge those procedures.

11. The proposed legislation does nothing to ensure either a reliable procedure or to ensure that an accused is in a position to challenge the process employed. In short, while it might save police resources it does so at the expense of the interests of that presumptively innocent accused.

12. Nor is the legislation consistent with the approach of the majority of jurisdictions party to the uniform evidence legislation. These jurisdictions favour identification parades where they are able to be conducted.

That is the end of the comment. It is signed by Andrew Ligertwood and dated 31 March 2011. The Law Society similarly considers that, if this parliament is going to legislate in this area, it should enumerate detailed procedures. I quote an excerpt of a letter from the Law Society to the Attorney-General dated 18 March 2011. It states:

We believe that the best way forward is for Parliament to implement a legislative regime for identification along the lines of the Commonwealth and the Crimes Act 1914. The relevant sections are [subsections] 3ZM to 3Z0. We do not suggest that every feature of the Commonwealth regime be picked up but we do recommend certain of them as follows:

The preservation of parade identification procedure, but only where it is appropriate; and

The inclusion in this state of legislative safeguards in respect of both identification procedures.

Identification evidence is fraught with danger producing the wrong outcome. The attraction to a legislative regime for identification evidence is that it will tend to minimise a miscarriage of justice (either in favour of the State or the accused).

Live line-ups cost money and time such that police may well not pursue a matter if they need to do a live line-up, but we must ensure that resources do not drive our practice here. Costs encourage us to use photo board but costs would also encourage us not to worry about the quality measures. The quality of the evidence must be the driving factor.

Unfortunately, quality has not been the driving factor for this government. Let me read from the Attorney-General's press release on this matter. It is headed 'Reducing red tape to keep police on the beat'. It reads:

Attorney-General John Rau today introduced legislation to remove red tape and free up SA Police resources in relation to the identification of suspects...'Live line-ups divert substantial police resources, often requiring up to 10 police officers and up to 60 hours of police time to arrange,' Mr Rau said...'Photographic identification of suspects is not only less traumatic for victims of crime, it also requires less police time and resources.' A major problem with line-ups is the police time and effort needed to gather in one place victims, witnesses, suspects and sufficient volunteers of similar appearance to the accused.

There is nothing in this press release, nothing in the second reading, about any steps to improve the quality of identification procedures—anything that would increase the likelihood that the bad guys get identified and the good guys do not.

The opposition seeks quality, not only in the scientific sense of quality, but also in the sense of other processes which promote quality. We need to ask ourselves: is there anything that we can do to implement photo board line-ups in a way that deals with the concerns that the legal community has in relation to them? One of the concerns that the legal community has raised is the opportunity for independent observation. Yes, as a parliament, we could allow a representative of the suspect to be present. Yes, as a parliament, we could require that all identification procedures be videotaped. But you will see nothing of such matters in this bill. This bill is about saving money, not ensuring quality.

The opposition is very suspicious about any interference in the judicial discretion to instruct juries on identification evidence. Let's remember that courts have not insisted on a formula of words of warning juries on identification evidence, simply because every set of circumstances is different. If a court wanders into commentary on the scientific worth, they will be putting themselves at risk of having the warning reviewed on appeal. They cannot take on the role of expert witness on identification testimony.

We think that this matter is far too important to be slipped through the parliament without the benefit of significant consultation. The government claims that, because they mentioned it in a policy statement during the election, that was consultation and there would be no value in further consultation. What a joke! A policy statement of a political party and the dialogue with the community on the doorsteps, on the telephone—unrecorded and uncollated in an election campaign context—is not consultation.

On this point, I quote from a media release of 11 March 2011 issued by the Aboriginal Legal Rights Movement (ALRM). Referring to the Chief Executive Officer of the ALRM, the release states:

Mr Gillespie said that it was a matter of grave concern that the Attorney-General had introduced legislation into Parliament yesterday without any consultation with the Aboriginal Legal Rights Movement. This is a fundamental change to the criminal law of South Australia in the collection of criminal evidence.

ALRM has a long history of supporting Government by providing comments and submissions on proposed draft legislation. That such important legislation was not shown to ALRM for comment before it was introduced to Parliament is a most disturbing and alarming precedent Mr Gillespie said.

In a letter to me dated 4 April 2011, the ALRM conveyed the concerns of the movement that identification methods should be better regulated. In this context, they conveyed the advice of Mr Ligertwood, which I referred to earlier. The ALRM had other concerns, and I will mention them. In the letter, the ALRM said:

...the Aboriginal Legal Rights Movement has general concerns about cross cultural and interracial identification processes by photographs. For example, subtle changes in tinting in a colour photograph of an Aboriginal suspect, perhaps caused by background lighting, could be productive of injustice through false identification and this obviously needs to be guarded against by all means possible.

The government wants crossbench MPs to believe the science of witness identification and support the bill. They argue that live line-ups are no better than photo boards, so we might as well use photo boards to save money.

The opposition wants crossbench MPs to believe the science of witness identification and oppose the bill. We believe that the method does not matter as much as the quality of the identification. It is my political judgement that it would be a distortion of the science and reckless lawmaking to remove the judicial preference for live line-ups without action to ensure quality. Adelaide is fortunate to have at Flinders University a witness identification expert of world standing in Professor Neil Brewer. Out of an abundance of caution, I indicate that he is the Dean of the Psychology School of which my wife is a member. Professor Brewer wants this bill to pass. He told a briefing of MLCs that he sees it as leverage to improve witness identification.

I indicate to Professor Brewer and his colleagues that we support his desire to improve criminal justice processes but, with all due respect to his scientific expertise, it is the opposition's political judgement that the best leverage to this goal is not to pass the bill so that the government can get its focus off cost-cutting and on to quality. I hope we see another bill in the not too distant future and that it will, unlike this bill, provide quality assurance and identification. I urge honourable members to join the opposition and oppose the bill.

The Hon. R.P. WORTLEY (12:11): I rise to address and support the Evidence (Identification) Amendment Bill. Put simply, this bill proposes that evidence of the identity of a defendant is not inadmissible merely because it was obtained other than by way of an identity parade. Rather, the intention behind the bill is to ensure that alternative means of identification—for example, photographic or video identification—may be used. These means of identification are not intended to preclude the identification parade nor to discourage or detract from its use where indicated.

The issue of the correct identification of a person suspected of committing an offence is one that should be of concern to us all. The preservation of the liberty of individuals is paramount in our system of justice, and the deprivation of liberty is a matter of the utmost importance. We are all familiar with the concept of an identity parade, or line-up, due possibly to the diet of The Untouchables, Dragnet and similar monochrome American fare, not to mention our own Homicide. Basically, a group of people, including the suspected person, is assembled to determine whether a witness to a crime can identify the suspect.

The purpose of this is so that the identification can then be tendered in evidence at a subsequent trial. Generally, of course, the witness is not visible to the members of the line-up. The non-suspect individuals—known in the trade as 'fillers'—must be of a commensurate height, physical build and complexion as the suspect. If the identification parade has been properly conducted, and the witness accurately selects the suspect from the cohort, the identification is regarded as valid and admissible as evidence.

The leading authority on reliable identification—the 1981 case of Alexander—has previously been cited during discussions on the bill that we are considering today. That authority has been followed in South Australia, most notably in the 1986 case of Deering. However, despite these authorities, photographic 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.

Evidence can be submitted or augmented where necessary or appropriate with photographic evidence. In this day and age, there can be issues with identification parades that mitigate against their use, and I will mention some of these issues. Given the proliferation of organised crime against people, witnesses can understandably be reluctant to place themselves in situations where their own identity might be made known to the alleged offender. Further, due to increased mobility, there can be issues involved in locating and assembling fillers of suitable age, appearance and build, along with victims and witnesses, for what can be extended periods of time.

The changing demographic and the cultural diversity which are so much part of our 21st century lives can result in difficulties in assembling sufficient fillers from a minority group. It can be difficult to find a cohort of fillers or, indeed, a sufficiently homogenous cohort of fillers, to match some offenders of unique build or appearance. Meanwhile, suspects can disrupt or otherwise compromise the process, for example, by altering their appearance in an intervening period.

Line-ups can be delayed for various reasons, with obvious consequences. Line-ups are expensive and, where crimes are committed in remote locations, line-ups can be difficult to arrange. All of this suggests that alternative means of identification, particularly in the digital age, can be a valuable adjunct to established methods of identification.

Just consider, Mr President, the arguments I have just marshalled against the traditional identification parade. They can be easily transposed to argue in favour of the use of 21stcentury technology. Photographs are quick and they can easily exclude innocent suspects. If the suspect has an unusual appearance, photographs of a similar appearance can be more easily obtained than a gathering of actual individuals of like appearance.

Photographs can be adjusted, for example, to remove facial hair or other features that may have been adopted between arrest and identification. Photographs can be swiftly and widely distributed to regional or remote areas or, where necessary, across jurisdictions. Photographic or video images are far more cost effective than the costly and time-consuming practice of assembling an appropriate cohort for the line-up.

Finally, human memory is fallible. We all know that there have been instances of mistaken identification, with all that can be implied for suspects and victims alike. That is why a judge's warning to jurors about relying on identification evidence will be neither removed nor watered down. The form of the amendment to be proposed is specifically designed to be technologically neutral. It does not prescribe the technology to be used.

Its major concern 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 can only make more immediate, more accurate and more cost effective the potential identification of the perpetrator or perpetrators of the crime, not to mention the fact that trauma to the victims and witnesses could well be reduced due to the fact that an assailant, for example, need not be seen in person. It is in this light that I am pleased to commend the bill.

The Hon. A. BRESSINGTON (12:17): I rise briefly to indicate my position on the Evidence (Identification) Amendment Bill which seeks to reform the current common law preference for identification parades (known colloquially as 'line-ups') over other forms of identification evidence. It does so by inserting proposed section 34AB into the Evidence Act 1929 which makes it clear that identification evidence is not inadmissible merely because it was obtained other than by an identification parade unless, of course, it lacks probative value.

Contrary to the government's position proffered in the briefing, the effect of this amendment will be that the current judicial preference for identification parades will be replaced by a police preference for photo identification. Like other members, I attended a briefing organised by the Attorney-General at which Professor Neil Brewer from Flinders University made it very clear that the earlier assumption in favour of line-ups no longer accords with scientific understanding, with the body of evidence suggesting that there is no meaningful advantage over well-conducted photo board identification.

Ultimately, after what I heard from Professor Brewer and from the research I have undertaken, I am convinced of the need for reform. However, like other members, I am not convinced that simply replacing one preference for another without any quality control, if you will, is the way to go about it. Whether it be through a similar approach to the commonwealth Crimes Act in which the procedure to be followed by the police is laid out in the act or some other means, I do think this parliament should use this opportunity to ensure best practice is compelled.

While I had considered having amendments drafted to this effect, I concluded that the limited time frame available meant this was not in my capacity. Furthermore, I believe the government, which is able to conduct broad consultation, is best positioned to have this legislation drafted. For this reason, and this reason alone, I will not be supporting this bill as it stands and instead will be looking to the government to come back with a bill that sets out the detailed procedures to be followed in accordance with best practice for photo board identification, and then such a bill will have my support.

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (12:20): I do not believe there are any further contributions to this bill. Very briefly, I would like to thank those honourable members who made a contribution to this bill. I look forward to the committee stage, and I am happy to deal with any questions or additional information that is required during that stage. With those very short comments, I commend the bill to the house.

Bill read a second time.

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