Proposed Identification Evidence Legislation South Australia
Thursday 24 October 2013 @ 10.57 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research
The Evidence (Identification Evidence) Amendment Bill 2013 which is described as a Bill for an Act to amend the Evidence Act 1929 (SA) to put photographic means of identification on an even footing with an identification parade as a means of identification has reached the Legislative Council and is at second reading stage as of 16 October 2013 having previously passed through the House of Assembly. The Bill is the South Australian Government's third attempt to implement this change to the State's evidence legislation, its first two attempts having been defeated in the Legislative Council.
What the Bill does
The Bill is described by the Attorney-General (AG) as following up on a promise by Rann Labor Government at the last South Australian State election that it would amend legislation so as to allow identification of a person suspected of committing an offence using photographs or video, including both still or moving digital images, in lieu of a physical "line up".
The proposed changes are argued by the AG to enable police to use technology like PowerPoint presentations or mobile data terminals located within police vehicles to present photographs to victims and witnesses. Thus the core proposal of the Bill is, to put photographic means of identification on an even footing with an identification parade.
The changes are intended by the government to:
- increase the efficiency of police investigations;
- relieve victims of the trauma of having to see the offender again, and
- free up valuable police resources.
While the government is making the changes to identification evidence laws, the AG has indicated that any changes made by the legislation and to procedures will ensure that the use of identification evidence in criminal proceedings is not compromised.
Background to the proposed law
The new legislation also clarifies according to the AG the position arising from the High Court decision in Alexander (1981) 145 CLR 395 where Gibbs J states that:
"The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime."
But having accepted in Alexander that an identification parade is the preferred method of identification the High Court also accepted that alternatives such as photographs can be used at least in the investigative stages of a case.
In South Australia in the case of Deering (1986) 43 SASR 252, King CJ said:
"Where there is a clear and definite suspect or where an arrest has been made the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade. If that procedure is not followed it gives rise to a discretion in the trial judge to exclude the evidence of identification by other means and that discretion will be exercised having regard to all relevant factors including, of course, the public interest in ensuring that persons who have committed crimes are convicted and punished for those crimes. It may be necessary to present photographs to an alleged victim of a crime at a stage of the investigation at which no person has been arrested and at which there is no definite suspect, in order to provide an opportunity for the victim to pick out the offender."
As a result of such decisions as the AG pointed out in speaking to the Bill that:
"photographic identification evidence is routinely adduced at trials in South Australia and the practice of the courts has moved away from Alexander and toward the routine use of photographic identification evidence" . . . where it has become . . . "widely accepted in practice as relevant and admissible evidence".
The AG also pointed out that while the traditional assumption that identification parades are a superior form of identification was accepted by the Australian Law Reform Commission in the 1980s and incorporated into the Uniform Evidence Act 1995 (Cth) later enacted in New South Wales, Victoria and the Australian Capital Territory - that traditional assumption has come under increasing challenge over recent years on account of practical considerations.
Other jurisdictions, like Western Australia (by way of judicial ruling) and England have explicitly departed from the preferred use of identification parades and recognised the benefit of identification by means of photographs or a video.
How Bill differs from government's previously rejected Bills
As noted above the South Australian Government has introduced similar Bills in 2011 and 2012 both of which were defeated in the Legislative Council due to concerns that the Bill should also include "statutory safeguards" to ensure that identification processes are adequate. As pointed out by the AG:
"This Bill includes such a safeguard by replicating the procedure set out in Part 17 of the Summary Offences Act 1953 (SA), namely, that the evidence will be inadmissible unless an audio-visual record of the identification process is made. Evidence that does not conform to this requirement may only be admitted if the interests of justice require it".
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
Evidence (Identification Evidence) Amendment Bill 2013 SA and the Explanatory Memorandum and supporting material as reported in the TimeBase LawOne Service
