115. Exclusion of evidence of identification by pictures

115. Exclusion of evidence of identification by pictures

(1) In this section, picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.

(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.

(3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if-

(a) when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged; and

(b) the picture of the accused that was examined was made before the accused was taken into that police custody.

(4) Subsection (3) does not apply if-

(a) the accused's appearance had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or

(b) it was not reasonably practicable to make a picture of the accused after the accused was taken into that custody.

(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged, unless-

(a) the accused refused to take part in an identification parade; or

(b) the accused's appearance had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or

(c) it would not have been reasonable to have held an identification parade that included the accused.

(6) Sections 114(3), (4), (5) and (6) apply in determining, for the purposes of subsection (5)(c) of this section, whether it would have been reasonable to have held an identification parade.

(7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the accused-

(a) if the picture of the accused was made after the accused was taken into that custody - inform the jury that the picture was made after the accused was taken into that custody; or

(b) otherwise - warn the jury that they must not assume that the accused has a criminal record or has previously been charged with an offence.

Note

Sections 116 (Directions to jury) and 165 (Unreliable evidence) also deal with warnings about identification evidence.

(8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the accused.

(9) This section applies in addition to section 114.

(10) In this section-

(a) a reference to a picture includes a reference to a photograph; and

(b) a reference to making a picture includes a reference to taking a photograph.

The Victorian Court of Appeal first considered the operation of these identification provisions in THD v The Queen [2010] VSCA 115. This decision was from an interlocutory appeal and did not comprehensively set out the law of identification in Victoria. To what extent the law is now codified, and to what extent the statutory provisions are complemented by existing precedent, has yet to be determined.

Under the common law, identification parades have traditionally been held to be preferable to picture identification: Alexander v R (1981) 145 CLR 395, and also notably Smith v The Queen (2001) 206 CLR 650..

Picture identification is not inadmissible solely because it was created while a suspect was in custody before a refusal to participate in a parade was indicated: R v Sarlija [2009] ACTSC 127.

Once an invitation to participate in an identification parade has been extended the time for a suspect to accept that invitation is not unlimited. How much time will pass before the invitation may be considered declined will depend on the circumstances of the case.

Sarlija [at 16]:

16. Clearly, a police officer cannot force a suspect to give a final answer about taking part in an identification parade. Even if Constable Cameron had approached Mr Sarlija or his lawyer on any or all of the occasions mentioned above, he would not necessarily have got a more definite answer than had previously been given. Equally clearly, a suspect cannot be allowed to stymie a police investigation indefinitely by refusing or failing to give an unequivocal answer to a request to take part in an identification parade. This means that at some point after a request is made, a police officer must, despite the absence of an unequivocal answer to that request, be entitled to treat a suspect as having refused to take part in an identification parade. It is impossible to lay down any general rules for when the police officer is able to do that, but I note that the accurate identification of offenders is promoted by the earliest possible use of whatever identification methods are legitimately available to investigating officers; from this I conclude that the time the police officer needs to allow to the suspect will not be very long. On the other hand, concluding that the police officer need not give an extended time for a suspect to respond is not the same as concluding that a police officer need not make any effort to clarify a suspect’s position.

A response from the suspect that attaches conditions to acceptance may still be understood as a refusal: R v Darwiche & Ors [2006] NSWSC 924.

A previous refusal to participate in an identification parade entitles investigators to conclude further requests will also be refused: R v Duncan and Perre [2004] NSWCCA 431 at 196. It follows that an invitation does not need to be made to a suspect for each potential witness who may be asked to attempt an identification.

It will often be held as unreasonable to conduct a parade where the witness has already performed an identification: R v D [2008] ACTSC 82; DPP v Donald [1999] NSWSC 949.

Penfold J [at 52]:

Where, as here, the identification takes the form of putting a name to the person observed by the witness, and conveying that identification to investigating officials and others in the absence of the person identified, the practical considerations are slightly different. However, a consideration of the facts of this case confirms the proposition that identification parades may be undesirable after the relevant identification is made.

The evidence in R v D might also have been considered recognition evidence. The NSW Court of Appeal stated in Trudgett v R [2008] NSWCCA 62 that a literal interpretation of identification evidence could produce absurd results (such as a wife being required to perform an identification of their husband of twenty years, which under the common law would earlier have been distinguished as recognition evidence rather than identification evidence. Spigelman concluded that recognition evidence may be more reliable than identification evidence, but this will turn on the particular circumstances of the case.

Evidence of resemblance (also called similarity evidence) is a form of identification evidence, and it was the ALRC's desire that this be so: ALRC 102 at 13.13. This is distinct from evidence which requires the trier of fact to engage in their own process of comparison (for example by examining CCTV footage to determine for themselves if the person depicted is the accused) which is not identification evidence: R v Kirby [2000] NSWCCA 330.