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.

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THD v The Queen [2010] VSCA 115: a question of fact and degree

The Court of Appeal determined this interlocutory appeal under s 298 of the Criminal Procedure Act 2009 last week. The Crown agreed that its case depended on a photoboard identification.

THD v The Queen [2010] VSCA 115

Counsel took issue with the photoboard in three respects, unsuccessfully in the trial court and again on appeal. The conduct of the identification and the photoboard itself was considered to be fair.

It was held [by Maxwell P at 21] that generalised submissions about fairness were inappropriate, and that specific provisions in the Evidence Act should be invoked to resolve these issues.

24 The application for leave to appeal has proceeded on the basis that the judge was deciding a question arising under s 137, which provides for mandatory exclusion when the court comes to the conclusion identified in the section. No occasion arises on this application to consider how the balancing exercise in s 137 is to be undertaken – between probative value, on the one hand, and the ‘danger of unfair prejudice to the accused’ on the other. I simply wish to emphasise that, in the new Evidence Act environment, it is the responsibility of trial counsel – defence and prosecution – to do as the prosecutor sought to do here, namely, to identify for the trial judge the statutory question or questions to be addressed. This will ensure that the court, in deciding the evidentiary or other question, directs itself correctly.

Whether an appeal of a judge's ruling under s 137 of the Evidence Act 2008 is to be determined according to the principles of House v The King (1936) CLR 499 has yet to be decided. (For more on this, see my post over at the Criminal Procedure Act blog). Interestingly, Maxwell P did seem to think so (slightly at odds with PNJ v DPP [2010] VSCA 88) but decided it wasn't necessary to answer the question in this case. Nettle JA was more definite that the fair composition of a photoboard is 'a question of fact and degree' and so to be resolved on appeal using the principles in House, and Neave J agreed with them both.

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Transitional provisions

Unlike the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, which makes significant changes to the operation of both Evidence Act 2008 and Criminal Procedure Act 2009, the Statutue Law Amendment (Evidence Consequential Amendment) Act 2009 is more significant for what it took out than what it brought in.

The Evidence Act 1958 is now the Evidence Act (Miscellaneous Provisions Act) 1958. The procedures for giving evidence, privilege, the antiquated provisions relating to business documents etc. have all gone. In the Crimes Act, familiar provisions like s 398A and s 400 have gone.

Perhaps the most important thing to note about this transitional legislation is the insertion of Schedule 2 into the Evidence Act 2008. The effect of this Schedule is to preserve certain kinds of evidence collected prior to January 1 2010, so that it will be dealt with according to the law and rules applicable at the time of its collection.

Examples include identification evidence, documents, agreed facts, and the discretion to reject improperly or unlawfully collected evidence in accordance with s 139 of the Evidence Act.

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Dictionary - Part 1 Definitions

Part 1 — Definitions

ACT court

Note

The Commonwealth Act includes a definition of this term.

admission means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding;

asserted fact is defined in section 59;

associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for—

(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or

(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted;

Australia includes the external Territories;


Australian court means—

(a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence;

Australian law means a law of the Commonwealth, a State or a Territory;

Note

See clause 9 of Part 2 of this Dictionary for the meaning of law.
Australian lawyer has the meaning it has in the Legal Profession Act 2004;

Australian legal practitioner has the meaning it has in the Legal Profession Act 2004;

Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court;

Australian Parliament means the Parliament, the Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory;

Australian practising certificate has the meaning it has in the Legal Profession Act 2004;

Australian-registered foreign lawyer has the meaning it has in the Legal Profession Act 2004;

Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated;

business is defined in clause 1 of Part 2 of this Dictionary;

case of a party means the facts in issue in respect of which the party bears the legal burden of proof;

child means a child of any age and includes the meaning given in clause 10(1) of Part 2 of this Dictionary;

civil penalty is defined in clause 3 of Part 2 of this Dictionary;

civil proceeding means a proceeding other than a criminal proceeding;

client is defined in section 117;

coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection;

coincidence rule means section 98(1);

Commonwealth owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 of the Commonwealth, be—

(a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph);

Commonwealth record means a record made by—

(a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or

(b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or

(c) a person or body, other than a Legislative Assembly, holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth; or

(d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose—

(i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

(ii) by the Governor-General; or
(iii) by a Minister of the Commonwealth; or

(e) any other body or organisation that is a Commonwealth owned body corporate—

and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned;

confidential communication is defined in section 117;

confidential document is defined in section 117;

court means Victorian court;

Notes

1. Victorian court is defined in this Dictionary.

2. The Commonwealth Act does not include this definition.

credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation;

credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;

credibility evidence is defined in section 101A;

credibility rule means section 102;

criminal proceeding means a prosecution for an offence and includes—

(a)a proceeding for the committal of a person for trial or sentence for an offence; a

(b)a proceeding relating to bail—

but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth;

cross-examination is defined in clause 2(2) of Part 2 of this Dictionary;

cross-examiner means a party who is cross-examining a witness;

de facto partner is defined in clause 11 of Part 2 of this Dictionary;

document means any record of information, and includes—

(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph;

Note

See also clause 8 of Part 2 of this Dictionary on the meaning of document.

electronic communication has the same meaning as it has in the Electronic Transactions (Victoria) Act 2000;

examination in chief is defined in clause 2(1) of Part 2 of this Dictionary;

exercise of a function includes performance of a duty;

fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy;

Note

The Commonwealth Act includes a definition of this term.

foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country;

function includes power, authority or duty;

government or official gazette includes the Government Gazette;

Note

The definition of this term in the Commonwealth Act and New South Wales Act differs from this definition.

Governor of a State includes any person for the time being administering the Government of the State;

Governor-General means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth;

Note

The Commonwealth Act does not include definitions of Governor of a State and Governor-General. These definitions are covered by sections 16A and 16B of the Acts Interpretation Act 1901 of the Commonwealth.

hearsay rule means section 59(1);

identification evidence means evidence that is—

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—

(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to that offence was done—

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or

(b) a report (whether oral or in writing) of such an assertion;

investigating official means—

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences;

joint sitting means—

(a) in relation to the Parliament of the Commonwealth—a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or convened under any Act of the Commonwealth; or

(b) in relation to a bicameral legislature of a State—a joint sitting of both Houses of the legislature convened under a law of the State;

judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held;

law is defined in clause 9 of Part 2 of this Dictionary;

leading question means a question asked of a witness that—

(a)directly or indirectly suggests a particular answer to the question; or

(b)assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;

legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment;

Note

Examples of legal counsel are in-house counsel and government solicitors.

Legislative Assembly means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly;

member of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police;

NSW court

Note

The New South Wales Act includes this definition.

offence means an offence against or arising under an Australian law;
opinion rule means section 76;

overseas-registered foreign lawyer has the meaning it has in Part 2.8 of the Legal Profession Act 2004;

parent includes the meaning given in clause 10(2) of Part 2 of this Dictionary;

picture identification evidence is defined in section 115;

police officer means—

(a) a member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory;

postal article has the same meaning as in the Australian Postal Corporation Act 1989 of the Commonwealth;

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;

prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness;

prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness;

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;

prosecutor means a person who institutes or is responsible for the conduct of a prosecution;

public document means a document that—

(a) forms part of the records of the Crown in any of its capacities; or

(b) forms part of the records of the government of a foreign country; or

(c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or

(d) is being kept by or on behalf of the Crown, such a government or such a person or body—

and includes the records of the proceedings of, and papers presented to—

(e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and

(f) a legislature of a foreign country, including a House or committee (however described) of such a legislature;

re-examination is defined in clause 2(3) and (4) of Part 2 of this Dictionary;

representation includes—

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(c) a representation not intended by its maker to be communicated to or seen by another person; or

(d) a representation that for any reason is not communicated; seal includes a stamp;

tendency evidence means evidence of a kind referred to in section 971) that a party seeks to have adduced for the purpose referred to in that subsection;

tendency rule means section 97(1);

traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;

Victorian court means—

(a) the Supreme Court; or

(b) any other court created by Parliament—

and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of eevidence;

Note

The Commonwealth Act and New South Wales Act do not include this definition.

visual identification evidence is defined in section 114;

witness includes the meaning given in clause 7 of Part 2 of this Dictionary.

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165. Unreliable evidence

165. Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence-

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(e) evidence given in a criminal proceeding by a witness who is a prison
informer;

(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

(g) in a proceeding against the estate of a deceased person-evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to-

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons
for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a
warning to, or to inform, the jury.

(6) Subsection (2) does not permit a judge to warn or inform a jury in
proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3).

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116. Directions to jury

116. Directions to jury

(1) If identification evidence has been admitted, the judge is to inform the jury-

(a) that there is a special need for caution before accepting identification evidence; and

(b) of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) It is not necessary that a particular form of words be used in so informing the jury.

Note also the reference to identification evidence at s 165(1)(b) in relation to jury directions about unreliable evidence.

Warnings to the trier of fact regarding identification evidence are required. Specific directions about the potential weaknesses of the evidence are necessary (as with the existing common law position, outlined in Domican v R (1992) 173 CLR 555). These warnings are necessary regardless of whether the evidence led is evidence of identification or similarity.

Section 116 does not require that a warning has to be given even when the evidence is not in dispute: Dhanhoa v R (2003) 217 CLR 1. To give a warning when the evidence is neutral or even favours the defence case has the potential to confuse the jury and make a case more complicated than it needs to be.

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.

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114. Exclusion of visual identification evidence

114. Exclusion of visual identification evidence

(1) In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

(2) Visual identification evidence adduced by the prosecutor is not admissible unless-

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

(c) the defendant refused to take part in such a parade-

and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account-

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things-

(i) if the defendant failed to cooperate in the conduct of the parade-to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case-to whether the identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.

(5) If-

(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held; and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present-

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

The Victorian Court of Appeal first considered the operation of these identification provisions in THD v The Queen [2010] VSCA 115.

The common law preference for identification parades as the fairest and least unreliable form of identification is retained. An accused can't be made to participate against their will and the refusal to participate can't be used by the prosecution for any other purpose but to explain why a lesser form of identification was used.

If an identification parade isn't done, s.114(2) provides that other forms of visual identification evidence will be inadmissible. The principal exceptions are (b) if it would not have been reasonable to hold a parade; or (c) the defendant refused to take part in such a parade. A series of non-exhaustive considerations are also included at (3).

Unlike Commonwealth legislation, there's no requirements for the conduct of identification parades in Victorian law and no requirement that they (or the refusal to participate in one) is recorded. If a parade was to be conducted unfairly, the general discretions to reject evidence at s. 135, s.138 and s.165(b) still apply.

For the purposes of s.114(2) it might be argued that it will not be reasonable to conduct an identification parade - a justification for admitting other evidence where one has not been conducted - where the witness would have recognised the suspect: DPP v Donald [199] NSWSC 949.

Evidence that goes to the identity of an offender is not, for that reason alone, evidence of identification: Bradshaw v State of Tasmania [2009] TASSC 39.

In R v Festa (2001) 208 CLR 593 , McHugh J drew a distinction between identification and mere similarity evidence, and suggested that warnings were not necessary for the latter. While this would appear to fit under the definition of identification evidence (discussed below) evidence of resemblance or similarity has been held not to be this kind of evidence - Dunford J [at 18]:

18 Although evidence which is not a positive identification, such as evidence that someone looked “similar to” or “like” the offender is not, standing by itself, sufficient to satisfy a jury of the identity of the offender beyond reasonable doubt: Pitkin v The Queen (1995) 69 ALJR 612, that does not mean that evidence of the general appearance or characteristics of an accused as similar to that of the person who committed the crime, sometimes referred to as “circumstantial identification evidence”, is not inadmissible, being proof of a circumstance usually, but not always, weak which with other evidence may point to the accused as the person who committed the crime: Festa v The Queen (2001) 208 CLR 593 at [56].

Recognition evidence

In R v Spero (2006) 13 VR 225, the Court of Appeal drew together earlier decisions (Davies & Cody v The King (1937) 57 CLR 170; R v Marijancevic (1993) A Crim R 272; The Queen v Lovett [2006] VSCA 5) that distinguish identification and recognition evidence. Where a person is well known to the witness the common law wariness that usually attaches to identification evidence does not apply. However, the definition of identification evidence provided in the Evidence Act 2008 suggests both identification and recognition evidence should be treated in the same way. Spigelman CJ in Trudgett v R [2008] NSWCCA 62 noted a literal approach could produce "absurd" consequences, and that the reliability of the evidence would turn upon the particular facts of the case, not its category..

Identification evidence

The definition of identification evidence is provided in the Dictionary.

Identification evidence does not include the production of a computer-generated or "artist's impression" of an offender, as such a product does not assert a resemblance to the accused (that will be a question for the jury: R v Kirby [2000] NSWCCA 330 [at 46]).

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113. Application of Part

113. Application of Part

This Part applies only in a criminal proceeding.

Inapplicability of Crimes Act custody provisions

The provisions contained in Part 3 Division 30A of the Crimes Act 1958 do not regulate the conduct of identification parades: R v Meldrum and Borchert [1995] VSC 109.

The Victorian Court of Appeal first considered the operation of these identification provisions in THD v The Queen [2010] VSCA 115.

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