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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-17 Daily Xml
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EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Introduction and First Reading

The Hon. S.G. WADE (16:09): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. S.G. WADE (16:09): I move:

That this bill be now read a second time.

Mr President, I might diverge briefly at the beginning, just to indicate that I apologise to the house for detaining it in its business. The reason I was detained was because I was attending a deadlock conference on behalf of this council. The opposition has specifically asked the government not to schedule deadlock conferences during the sitting of the house. I fail to remember how many times I have been inconvenienced in terms of the discharge of my other duties in this place because of deadlock conferences scheduled by the government in sitting times.

I will indicate to the government that I intend to, because of yet another recurrence, take whatever steps are necessary to avoid this happening. I do not believe it shows due respect to deadlock conferences, I do not believe it shows due respect to the business of the council, and it is certainly disrespectful to non-government members. The government has control of the agenda; they can schedule deadlock conferences, and they can schedule deadlock conferences in a way which is inconvenient.

One of the members of the House of Assembly was also unable to come because she was detained by House of Assembly business. So, the government's response to my entreaties was that it was unhelpful. I would suggest that the government's obstinate rejection of the needs of the whole parliament is an indication of a tired government. I will now address the bill.

The bill was foreshadowed yesterday by the Leader of the Opposition, Isobel Redmond, when she addressed the Police Association. The bill proposes to amend the Evidence Act 1929 to support quality collection and use of identification evidence. As Ms Redmond said, this is yet another example of the Liberal Party leading from opposition.

In 2011, the government introduced the Evidence Identification Bill 2011 to remove the judicial preference for the use of line-up identification parades. In doing so, it made no attempt to protect the quality of identification evidence. The courts' preferences for line-up parades is not supported by science or by the reality of police operations. Line-ups are time consuming and not necessarily as reliable as, say, a photo board. Organising line-ups can take up to 10 police officers and up to 60 hours of police time, according to the government's statements—time that could be better spent on any number of other police activities.

The opposition supports the removal of the judicial preference in principle; however, we considered that the way that the government sought to legislate the change was flawed. It made no provision for quality in the identification processes, and it ranked efficiency ahead of the quality of the evidence collected. In opposing the bill, we said that we hoped the government would put a better bill back in the parliament in the not too distant future.

The Police Association reiterated how important the change is to the Police Association, and encouraged action. After 16 months of government inaction, the opposition is taking up the fight. The bill I table today is designed to support the use of photo boards for identification by removing the judicial preference for line-ups in the context of best practice quality standards for all forms of identification.

According to science, there is a negligible difference between the reliability of identification using live line-ups and identification using photo board line-ups. Professor Neil Brewer of Flinders University, a local and a world expert in the reliability of eyewitness evidence, suggests that how an identification method is implemented matters more than the identification used.

My understanding is that Professor Brewer supports making photo board line-ups at least as accessible as live line-ups, because a photo board line-up gives the authorities a greater capacity to manage the variables that impact on quality—issues such as constructing, retention interval and contamination. It gives you a better opportunity to promote quality, but only an opportunity. As Professor Brewer put it in a public lecture in 2011, 'a photo board done badly is just as bad as any other method'.

The opposition wants the justice system to rely on the best available evidence and the best available science. We support the removal of the judicial preference for line-ups in the context of scientifically verified quality identification procedures in place for all modes of identification.

Two key submissions from legal stakeholders on the 2011 bill emphasised the need to drive standards in identification procedures. The submission from the Aboriginal Legal Rights Movement included comment on the bill from Mr Andrew Ligertwood, a leading Australian expert on the law of evidence. I would like to read an excerpt of his comment in relation to quality:

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...

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, which 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 3ZO. We do not suggest that every feature of the Commonwealth regime be picked up but we 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).

The opposition supports the Law Society position that quality standards should be enumerated but we consider that the science in this area is so dynamic that it is an appropriate area for standards to be in regulations. The regulated standards may not need to be any longer than those in the Crimes Act. There may still be detailed general orders on identification but the need for flexibility suggests the benefit of standards in regulations.

The bill proposes to insert a new section 34AB in the Evidence Act called 'Identification evidence'. Under subclause (1), in a criminal trial, evidence of the identity of the defendant is not admissible unless the evidence has been obtained in accordance with the procedures prescribed by the regulations.

Under subclause (2), in a criminal trial, the judge may admit evidence of the identity of the defendant obtained otherwise than in accordance with the regulations if the judge is of the opinion that, despite the noncompliance, the evidence has sufficient probative value to justify its admission. These two key provisions were not in the government bill and we believe they are crucial to the veracity of the changes and the quality of identification evidence.

The opposition looks forward to the input of the police, legal stakeholders, the scientific community and the wider community on the draft bill. I am tabling the bill today for the sake of further consultation with those and other stakeholders. I have already received preliminary feedback from two different lawyers advocating for a stipulation that all acts of identification by a witness be videorecorded. Alexander's case of 1981 is referred to in this context. I presume that their preference would be for a reference to videotaping to be in the act rather than the regulations, and I would specifically welcome any feedback from stakeholders on that suggestion.

This bill is in the best interests of justice. It will enable police resources to more efficiently be deployed to their investigative task. It will bring a new level of quality to identification procedures, which will reduce the risk of miscarriages of justice as quality methods are more widely used by investigative agencies and given more authority by our courts. In anticipation of receiving and sharing feedback on the draft, I seek leave to continue my remarks.

Leave granted; debate adjourned.

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