13. Identification Evidence

Identification parades

13.47 At common law, it is recognised that the identification parade is the most reliable mechanism available for identification of suspects. Gibbs CJ stated:

[I]t is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender.[56]

13.48 Despite its preference for identification parades, the common law stops short of holding that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade had been held.[57] Thus, evidence of identification using photographs or other means is admissible at common law, even if there is no valid reason why an identification parade has not been held. The proper approach at common law is to consider whether the conviction can safely be sustained on the whole of the evidence,[58] with the trial judge having a discretion to exclude identification evidence if its prejudicial effect on the accused is outweighed by its probative value.[59] The use of means of identification other than an identification parade (such as photos) goes to the weight and sufficiency of the evidence, rather than to its admissibility.

13.49 Under the uniform Evidence Acts, the common law preference for identification parades becomes a requirement for admissibility of identification evidence. Section 114(2)(a) establishes the general rule that visual identification evidence adduced by the prosecutor is not admissible unless an identification parade that included the defendant was held before the identification was made. There are two exceptions to this general rule: where it would not have been reasonable to have held an identification parade; and where the defendant refused to take part in such a parade.[60]

13.50 Section 114(3) lists non-exhaustive factors which may be taken into account in determining whether it was reasonable to hold an identification parade, including the nature of the offence, the importance of the evidence, and the practicality and appropriateness of holding a parade. It is presumed that it would not have been reasonable to hold a parade if it would have been unfair to the defendant to do so.[61] If a defendant refuses to take part in a parade, that will be enough to make the holding of a parade unreasonable—unless the defendant refuses to participate on the ground that the defendant’s lawyer or other nominated person was not present, and it would have been reasonably practicable for that person to be there.[62]

Submissions and consultations

13.51 Some practitioners in jurisdictions which have not yet adopted the uniform Evidence Acts question the focus on identification parades adopted in the Acts. They note that the uniform Evidence Acts apply a ‘platinum standard’ and that any change would raise ‘huge’ resource issues for the police.[63]

13.52 It is suggested that the question of which mechanism is used for identification (and the subsequent reliability of the evidence) should be an issue going to the weight of the evidence, rather than admissibility.[64] It is also suggested that the procedural issues involving mechanisms for identification are better dealt with in police regulations rather than in the uniform Evidence Acts.[65] Scepticism is expressed that an identification parade is better than the use of a photo-board, which provides grounds for cross-examination, and can be filmed.[66]

The Commissions’ view

13.53 The Commissions’ view is that the structure of the uniform Evidence Acts, particularly the focus on identification parades, enhances the reliability of identification evidence placed before the courts. Admittedly, adoption of the relevant provisions may necessitate change in police practice. However, in light of the notorious unreliability of identification evidence generally and the capacity for it to lead to miscarriages of justice, the Commissions believe that the structure of the Acts should be maintained where possible.

13.54 The common law preference for identification parades was developed in response to research which suggested that identification parades tend to provide more reliable identification than the use of photographs or other techniques. The benefits of identification parades include that they are less suggestive than other methods of ‘picking out’ (such as pointing to a suspect in a prison yard or in the court house); they avoid the prejudicial tendency of photographs to suggest to the witness and/or the jury that the suspect has an existing criminal record; they provide a more holistic means to observe suspects than the static two-dimensional framing of a photo; and they allow the suspect (or their lawyer) to be present to observe the identification process.[67]

13.55 When the identification provisions were enacted in New South Wales and the Commonwealth, they engendered a significant change from the common law and required alterations in police practice. There has not been any suggestion to the Commissions that the relevant provisions in the Acts have created an unreasonable burden on police. This observation is fortified by the existence of the exceptions in s 114(2), most notably s 114(2)(b), which obviates the need for an identification parade where it is shown that it would not have been reasonable to hold one.

13.56 Under the uniform Evidence Acts, police use of alternative methods of identification (in circumstances where the exceptions in s 142(2)(b) and (c) do not apply) is no longer merely a matter going to the weight of the evidence, as is the case at common law. This was a conscious policy decision. The use of alternative techniques to identify suspects in the early stages of police procedure can taint all subsequent identification evidence adduced at trial, particularly in cases where there are few witnesses. This is due to the ‘displacement effect’ in memory and observation, whereby witnesses tend to recollect (and subsequently identify as the suspect) the image of any person shown to them through photos or other means, as opposed to the face of the offender they observed at the scene.[68] The adverse consequences of the ‘displacement effect’ make it vital to ensure the reliability of the initial identification procedures to which a witness is exposed. The Commissions believe that it is thus more appropriate for the consequence of the particular identification procedure employed by the police to go to the question of admissibility rather than the question of weight.

13.57 There have been shifts in the approach to identification parades abroad. In the United Kingdom, there have been moves to use ‘video’ identification parades, which are claimed to be cheaper and more effective than live parades.[69] There is, however, an important caveat: the European Court of Human Rights has held that where a video identification parade is held using footage of a person later identified as the perpetrator of a crime, if that footage is obtained covertly, or for another reason it is obtained in circumstances which are not fair and lawful, this gives rise to a violation of that person’s human rights (specifically, their right to privacy under Article 8 of the European Convention on Human Rights 1950).[70]

13.58 In the United States, the emphasis has been on the reliability of sequential, rather than simultaneous, ‘line-ups’[71] (which force victims to compare the suspect with their recollection of the offender as opposed to comparing the participants in the line-up as against each other).[72] However, despite these changes, the identification parade, when properly conducted, is still the most reliable mechanism available for eyewitness identification.

13.59 The Commissions note that the Evidence Act 2001 (Tas) did not adopt the identification parade requirement in s 114. Thus, in Tasmania, evidence of identification can be admitted without the prior requirement of an identification parade.[73] However, the Commissions maintain the view that the identification provisions in Part 3.9 should be adopted as a whole where possible, in light of the inherent unreliability of identification evidence and its capacity to lead to miscarriages of justice.

[56] Alexander v The Queen (1981) 145 CLR 395, 401.

[57] Ibid, 401 per Gibbs CJ, 430 per Mason J.

[58] Ibid, 401, citing Davies & Cody v The Queen (1937) 57 CLR 170.

[59] Alexander v The Queen (1981) 145 CLR 395, 402 per Gibbs CJ, 430 per Mason J.

[60] The exceptions are in s 114(2)(b) and (c) respectively. Section 114(2) also requires that identification be made in circumstance where the witness was not intentionally influenced to identify the defendant.

[61] Uniform Evidence Acts s 114(4).

[62] Ibid s 114(5).

[63] Confidential, Consultation, Brisbane, 10 August 2005.

[64] Ibid.

[65] Ibid.

[66] Ibid.

[67] See Departmental Committee on Evidence of Identification in Criminal Cases, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976), [5.21]; Alexander v The Queen (1981) 145 CLR 395, 401–402; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [435]. Further disadvantages of photographic identification are discussed below.

[68] See Alexander v The Queen (1981) 145 CLR 395, 409. See also Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [421]. More recently, the New South Wales Court of Criminal Appeal discussed the problem of the ‘displacement effect’ in Clarke v The Queen (1994) 71 A Crim R 58. This aspect of the case was analysed in D Patch, ‘Clarke’ (1994) 18 Criminal Law Journal 296, 297–298.

[69] For an explanation of the United Kingdom pilot scheme, VIPER (Video Identification Parade Electronic Recording), see A Hogben, ‘Police, Camera, Action!’ (2003) 14 Computers & Law 4. See also: J Dodge, Police Try Video Identity Parades (2002) BBC News <http://news.bbc.co.uk/1/hi/uk/2118319.stm> at 9 September 2005.

[70] Perry v United Kingdom (2004) 39 EHRR 3. For analysis of this decision and its significance in relation to video identification parades, see: C Ovey, ‘Human Rights: Article 6(1)—Right to a Fair Trial: Case Comment’ (2003) Criminal Law Review 281; ‘Crime and Sentencing: CCTV in Police Custody Suite Used for Video Identification Parade’ (2003) 6 European Human Rights Law Review 661.

[71] This is the term preferred in the United States for identification parades.

[72] US Department of Justice—National Institute of Justice, Eyewitness Evidence: A Guide for Law Enforcement (1999). Note that in the United States, a ‘line-up’ is recognised as the most reliable form of evidence, but line-ups can be based on live line-ups or photographic line-ups. There is no requirement that any particular form of procedure be used. Pre-trial photographic identification and subsequent in-court identification based on pre-trial procedures must be excluded only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification: Simmons v United States 390 US 377 (1968), 384.

[73] It also did not adopt the regulation of the use of police photographs in s 115. Tasmania has, however, enacted s 116 of the uniform Evidence Acts, dealing with directions to the jury and the associated definition of ‘identification evidence’: Evidence Act 2001 (Tas) ss 3, 116.