Refusing an ID parade

Before an accused can be deemed to have refused to participate in an identity parade it is necessary to enquire if this is the case.

This may seem obvious, but in R v Massey [2009] ACT 12 the police didn't even ask the accused. The prosecution relied upon s 115(a) which allows other forms of identification if the accused refuses to participate in a parade.

Higgins CJ at 12:

12. The evidence to support [the refusal] was that of Senior Constable Paul Hutcheson who stated:

I intended to offer the [Respondent] the opportunity to participate in a taped record of interview, to participate in an identification parade, and to voluntarily provide a sample of his DNA. I was advised by Corrective Service Officers that the [Respondent] did not wish to see me.

13. It is not even asserted in this statement that the Corrective Service Officer(s) who gave the advice was informed by Senior Constable Hutcheson of the purpose for which he wished to speak to the respondent. Nor, even if that was conveyed, of the terms of the request to the respondent conveyed by that officer to the respondent.

14. The finding by Gray J that s 115(5) was not complied with is therefore manifestly correct. It would be pure speculation to suppose that the request, even if accurately and fully conveyed would have been refused.

Admittedly, there is some breadth of scope for a refusal by words or conduct: R v Darwiche (2006) 166 A Crim R 28. But even allowing for a generous margin Massey's case was taking matters too far.