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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-07-06 Daily Xml
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EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I was briefly wanting to reflect on where we have got to at this point, and I should say that my comments will take only a minute or two. It seems that we have got to the position where the government and the opposition agree on one key point, that is, that witness identification can be improved. Where we differ is that the government wants to suggest to the council that, given the improvements of witness identification, it should support the bill because it argues that live line-ups are no better than photo boards, so we should increase the capacity for police to use photo boards.

The opposition agrees with the government that witness identification has moved on significantly, but we say that the science suggests to us that the method does not matter as much as the quality of the identification. It is my judgement that it would be a distortion of the science and reckless lawmaking to remove the judicial preference for live line-ups without acting to ensure quality. The Law Society and the ALRM have made a range of suggestions to improve the quality of identification and, therefore, the quality of justice.

It is the opposition's judgement that the best way to improve quality is not to pass this bill, so that the government can refocus on quality and away from costs. If honourable members are inclined to support the bill and hope that the government improves quality of identification anyway, I urge them to reconsider and retain the respectful suspicion that this council holds for the executive.

We do not usually swallow the 'Trust us; we're from the government' line. Why would we give away the only leverage we have to promote quality in identification and justice? I hope that we will see another bill in the not too distant future, but at this stage the opposition urges honourable members not to support the bill.

The Hon. M. PARNELL: This is now the opportunity for the Greens to put its position more firmly on the record, given that in my second reading speech we supported the passage of the bill through that stage, but we reserved our right in relation to the final passage of the bill.

As I see the evidence, whether it is a photo board line-up or a human line-up, it is less important which of those is chosen: either can lead to reliable or unreliable outcomes depending on how they are conducted. I have not seen any evidence that contradicts that basic position; in other words, a badly conducted photo line-up is as unreliable as a badly conducted physical line-up.

The question that arises is: why in legislation would we move away from the status quo, which is a judicial preference for one form, and through legislation express a preference for another form when we know that both can be unreliable and that what is really missing are the detailed rules of procedure as to how various methods of identification are to be conducted?

As the Hon. Stephen Wade said just now and in his earlier contribution, I think the target for us needs to be to get the quality right and not to simply shift the presumption in favour of physical line-ups towards photo line-ups when the only real advantage of that is the saving in cost. Having said that, the Greens have also heard evidence that the cost of physical line-ups is certainly greater.

We have also heard evidence that defence lawyers have sought to use the preference for physical line-ups to delay identification evidence for as long as possible and to put as much time between the events and the identification as possible in order to increase the chance of a non-identification or a misidentification. I have no doubt that those things can happen.

We have also heard evidence about the difficulty of physical line-ups in remote locations. Whilst we can acknowledge that all of these things are problems, I do not think that necessarily gives us sufficient reason to simply swap boats—to jump from a presumption in favour of physical line-ups to a presumption in favour of photo line-ups—when we know that both, misapplied, can equally lead to miscarriages of justice.

I note also, as other honourable members have, that the Greens have supported in this place the creation of a body to address miscarriages of justice. One of the greatest causes of miscarriages of justice is misidentification of suspects, so it is inconsistent for us to say that we want a mechanism for redressing miscarriages of justice without putting sufficient evidence into the rules that actually aid and abet those miscarriages of justice from taking place.

Given that there are no amendments to consider in this bill, I will put the Greens' position on the record now. We will oppose this bill and we invite the government to come back with something that is more considered and has more procedural detail in it so that whichever method is to be preferred is one that is guided by sound scientific procedure. We note the precedent for that approach in other jurisdictions, including at the commonwealth level.

It is probably too late to amend this bill between the houses, but I would welcome the government bringing us something back, which the Greens would be pleased to consider, that focuses on the quality of identification evidence and not simply a kneejerk reaction to trying to preference the cheapest method of identification evidence.

The Hon. D.G.E. HOOD: I have indicated Family First's position previously but I will reiterate, given that it has been some time since the last time we were able to address this bill. I will be brief, however. If we accept the argument that both the photographic identification method and the so-called line-up method are both flawed and that they are essentially equivalent, that they are open to errors in both cases, the question has to be asked: why would we not go for a method that is less susceptible to manipulation by defence lawyers—and even prosecution lawyers, but certainly by defence lawyers predominantly—and obviously has some sort of cost benefits as well?

I have spoken with a number of defence lawyers in informing Family First's position on this particular bill. A number of them have been open enough with me to say quite categorically that they have, on occasions, either deliberately delayed a particular identification of a suspect, somebody they were defending, or else not opposed outright—I will be careful what I say—but making it more difficult, if you like, for someone to be identified through a line-up. Frankly, I will not have any part of that. I do not think that is something that I am prepared to support at any level. I know my colleague the Hon. Mr Brokenshire feels the same way, so we will be supporting this bill. If the identification process is equally or similarly flawed, then why would we not support something that offers benefits in terms of a cost benefit and less potential for deliberate manipulation?

The Hon. A. BRESSINGTON: I will be very brief too. I think I made my position quite clear in the second reading speech. I will also be opposing this bill. It seems to be a trend of this government to undermine our justice system and our defence mechanisms that are in place. I do not see any reason to be throwing the baby out with the bathwater. If there are flaws in the quality of a procedure, then fix the flaws, and do not start to whittle away at procedures that we have had in place in our justice system for a very long time, either for the purpose of a prosecution or a defence.

No offence to the Hon. Mr Hood, but if defence lawyers use this as part of the system to delay a trial or make identification difficult, then that is what we should be legislating for. We should be legislating to limit what the legal profession can do if they are abusing this and improve the procedures to make sure that they are delivered with criteria that is scientifically and forensically proven to be effective and to put those measures in place. I see this simply as a cost-saving mechanism. I attended the briefing—and I cannot remember the professor's name.

The Hon. M. Parnell: Professor Brewer.

The Hon. A. BRESSINGTON: I thought it was Brewer—where he said that you can alter the outcome of a line-up quite effectively one way or the other. You can make it obvious that it is the person or try to cover up that it is the person. This is all procedural. This is not about the fact that line-ups do not work or photo IDs do not work: it is about how they are used, how it is applied and the procedures that underline that. I am with the opposition and the Greens on this: let the government come back with a bill that shows that we are prepared to fix the flaws rather than just ditch it for the sake of ditching it.

The Hon. S.G. WADE: I will be brief. I do not know whether it is out of order to answer a rhetorical question; nonetheless, I propose to do so. The Hon. Dennis Hood posed the question: if each identification method is equally flawed, why would we not support the cheaper one and the one that is less vulnerable to manipulation? My answer is that the council should not support this bill because we have the opportunity to reduce the flaws in both methods and, when we have had a go at that, we can feel comfortable in removing the judicial preference.

The Hon. J.A. DARLEY: I will be opposing this bill.

The Hon. K.L. VINCENT: For reasons already outlined by many honourable members, I will be opposing this bill.

Clause passed.

Remaining clauses (2 to 4) and title passed.

Third Reading

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) (12:36): I move:

That this bill be now read a third time.

The council divided on the third reading:

AYES (9)
Brokenshire, R.L. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hood, D.G.E.
Hunter, I.K. Wortley, R.P. Zollo, C.
NOES (12)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Franks, T.A. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)

Majority of 3 for the noes.

Third reading thus negatived.

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