13.60 The difficulties with the use of picture identification in an evidentiary context are well known. In addition to the differences between two-dimensional static photographs and real-life persons, the use of photographic identification denies the accused the opportunity to be present when the identification is made and thus the accused is unable to examine the conditions or safeguards adopted against error. Further, the fact that the police have photographs of the accused in their possession often suggests to a witness and/or the tribunal of fact that the accused ‘has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged’ (the so-called ‘rogue’s gallery effect’). Finally, research indicates that witnesses sometimes retain the image of a person shown to them in a photograph, rather than ‘the memory of the original sighting of the offender’ (the ‘displacement effect’).
13.61 Section 115 of the uniform Evidence Acts (other than the Evidence Act 2001 (Tas)) places limitations on the admissibility of picture identification evidence. Picture identification evidence is defined as ‘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’.
13.62 Section 115(5) retains a preference for the deployment of identification parades if possible. As such, picture identification evidence adduced by the prosecution is not admissible if the identifying witness examined the pictures while the defendant was in police custody and an identification parade was not held, unless it would have been inappropriate or unreasonable to hold a parade for one of the listed reasons.
13.63 If evidence of a picture identification must be adduced for one of the listed reasons, s 115 seeks to address the possible unfairness to a defendant. Picture identification evidence is not admissible if the pictures examined suggest that they are pictures of persons in police custody. Section 115 also provides, subject to a number of exceptions, that picture identification evidence is not admissible where the defendant was in police custody when the pictures were examined and the picture examined was taken before the defendant was taken into police custody on that occasion. This latter provision seeks to ensure that the police will not use old photographs they may hold of the suspect, thus reducing the impression on the witness or the jury that the suspect has previously been of interest to the police.
The concept of ‘police custody’
13.64 The application of s 115(3) is limited to defendants who are in ‘police custody’ at the time the identification was made. This means that nothing in the section prohibits the use of old police photographs for the purposes of locating a suspect at the investigation or detection stage before a suspect has been taken into custody, provided the photographs do not depict the suspect overtly in police custody.
13.65 The common law recognises the difference between using photographs during the course of the detection process (to assist the police to know whom they should arrest and charge) and the use of photographs during the course of the evidentiary process (to establish proof in court that the accused is in fact the offender). Stephen J noted:
For the purposes of the police in the detection process … the use of photo-identification is of obvious value, despite its inherent defects. It offers to them a quick and convenient means, often the only readily available means, of having an eye-witness pick out the alleged offender from what may be a very large number of possible suspects. To deny its use to the police in the detection process, where it serves a useful, perhaps even essential, purpose, would be to prejudice the attainment of one of the ends of justice, the detection and bringing to trial of offenders.
13.66 The limitation of s 115(3) to persons ‘in police custody’ aims to ensure that the section will not diminish the capacity of the police to continue to use old photographs in the course of the investigatory process.
13.67 In the report of the previous Evidence inquiry, the ALRC considered—as an alternative to the ‘police custody’ requirement—limiting the application of the safeguards in s 115 based on the ‘state of knowledge’ of the police with respect to the suspect and on whether, for example, the person to be identified was a ‘definite suspect’. Stephen J had earlier advocated a similar approach at common law in Alexander. However, ultimately it appears to have been concluded that this wording would lead to a similar result in practice to requiring that an accused be in police custody; and that in practical terms the requirement that the suspect be in police custody was necessary in order for the police to hold an identification parade or, alternatively, to obtain another photograph of him or her for the purposes of identification.
13.68 The terms ‘in the custody of a police officer’ and ‘police custody’ found in ss 115(2), (3), (4) and (7) are not defined in the uniform Evidence Acts but have been interpreted as meaning ‘under physical restraint’. The adoption of the wording ‘in police custody’ in order to ensure that police may continue to use photographs at the initial stage of investigation may have implications for the broader operation of s 115. Stephen Odgers SC notes:
Whatever interpretation is given to the term ‘police custody’, it is clear that it does not extend to a situation where the police suspect that the defendant committed a crime but choose to engage in picture identification before asking or compelling the defendant to come to a police station. It follows that, in such circumstances, the picture identification evidence will not be excluded by s 115, no matter how unreasonable this decision was (unless the pictures used suggest that they are pictures of persons in police custody).
13.69 It has been stated that, in consequence, the police may be able to avoid the operation of this provision not only during the investigatory stage (as was intended by the legislation) but also after they have identified and located a suspect, by defining a person as voluntarily co-operating or by releasing an arrested person on bail before attempting picture identification.
13.70 The scope of s 115 was considered in R v McKellar. In McKellar, a police officer investigating a robbery had made intensive efforts to find people in Bourke who were sufficiently similar to the appellant and willing to participate in an identification parade. When he was unsuccessful, the police officer conducted identification using a photograph of the appellant taken by police while the appellant was at the police station following his arrest on another matter. Picture identification took place after the appellant had been released on bail and was held to be no longer in police custody. It was therefore held that the safeguards of s 115(3) did not apply.
13.71 On the facts, there is no indication that the police were deliberately avoiding the application of s 115 in McKellar. However, the section does indicate that the definition of ‘police custody’ has a limited operation. Counsel for the appellant argued that the words ‘in the custody of a police officer’ in s 115(5) should be construed in a broad way to cover any kind of ‘legal power or influence over the person’. The New South Wales Court of Criminal Appeal observed that, even under the widest possible interpretation, it is hard to assert that, once the appellant had been released on bail from the police station, the police had any additional ‘legal power or influence’ over the appellant than they had over any other member of the community. Thus, when a defendant is released on bail, the requirements for picture identification in s 115(3) do not apply.
Submissions and consultations
13.72 It was asked in IP 28 whether the Evidence Act 1995 (Cth) should be amended to ensure that the provisions relating to the admission of picture identification evidence where defendants are in ‘police custody’ cannot be avoided by police. In DP 69, the Commissions concluded that no amendment was necessary.
13.73 There were various submissions in response to IP 28. The NSW DPP submitted that the uniform Evidence Acts should be amended in the manner adverted to in IP 28:
This could be partly achieved by including a broad definition of ‘police custody’ which extends to situations where the accused is either under physical restraint or voluntarily co-operating with police. The circumstances in which picture identification evidence is not admissible could be extended beyond situations where the defendant was in police custody when the pictures were examined, so as to further discourage the use of picture identification.
13.74 The NSW PDO observed that, as an accused person is only in the custody of the investigating police for a short time before being either granted bail or taken to prison, the safeguards in s 115 apply only ‘to the short period when the accused is still at the police station’. The NSW PDO submitted that this limitation should be removed.
13.75 In response to DP 69, the Office of the Victorian Privacy Commissioner agrees that the removal of the ‘police custody’ limitation altogether is the best solution, allowing s 115 to apply to all picture identification obtained by the police officers. It submits that this approach is superior to relying on s 138 to catch situations where police act improperly, or redefining the limits of the section based on the subject’s state of knowledge of the police.
13.76 Some judges of the New South Wales District Court have criticised the drafting of s 115(3):
If the intention of s 115(3) is to preclude a jury arriving at an inference adverse to an accused by propensity reasoning then it is clumsily drafted and excludes the use of photographs taken in the course of investigation where defendants have been under observation for months.
13.77 The judges stated that situations involving picture evidence are usually dealt with by an explanation from the bench to the jury as to how the police came into possession of the photograph used—for example, that the picture was the photograph taken by police at arrest or taken prior to arrest but in the course of the investigation.
The Commissions’ view
13.78 The picture identification provisions give primacy to identification evidence from an identification parade and are structured accordingly. The policy objective is to ensure that where a person is in police custody (the police having established the identity of the offender to their satisfaction), any attempt to secure identification evidence should be by an identification parade, that being the best method available for that purpose. However, in the event that it is unreasonable or impracticable to hold an identification parade, s 115 aims to allow the use of police photographs while minimising the prejudicial effect this may have on the accused.
13.79 It would be a serious cause for concern if the police could deliberately avoid the policy objective of s 115. However, it has not been suggested that this, in fact, occurs. Submissions and consultations do not indicate that police deliberately avoid the application of s 115. Admittedly, the effect of McKellar is that s 115 does not cover situations where an accused is deemed to be ‘voluntarily cooperating’ with the police or after a suspect has been charged and released on bail. However, there has been no suggestion that this causes significant unfairness for the defendant, or that the police are systematically avoiding the operation of s 115 by manipulating the temporal window left by these gaps in the operation of the section.
13.80 As noted, s 115 does not apply until the suspect is in police custody. This means that the police may legitimately use photographs as part of the detection process. It is only after a suspect is identified that the police can reasonably be expected either to hold an identification parade or to obtain new photographs of the suspect. This reflects the common law. For this reason, the Commissions do not recommend that the police custody requirement be removed in its entirety. Moreover, the Commissions’ view is that the term ‘police custody’ offers a more practical standard for the application of the provisions than a requirement based on the state of knowledge of the police.
13.81 As a number of New South Wales District Court Judges have noted, the operation of s 115(3) will preclude the police from using photographs taken of the accused while the accused was under police surveillance—even if such surveillance took place many months before an arrest was made. This is because, if the defendant is in the custody of the police when the identification occurs, the police should be able to take a contemporaneous photograph of the defendant to use for identification purposes. Showing to a witness surveillance footage or photographs made by police of a suspect is problematic because it may indicate that the suspect has been under police observation for some time. Thus, this is likely to provoke the same sort of reasoning in the mind of a witness (ie, that the person in the surveillance photographs must have been engaging in nefarious conduct because he or she had come to the attention of the police) as was acknowledged by the New South Wales District Court Judges to be the mischief that s 115 seeks to prevent. Moreover, if the police are using surveillance photos to identify a suspect rather than make a confirmatory identification, or if the defendant is on bail, nothing in the uniform Evidence Acts precludes the use of surveillance photos as long as they do not suggest that the defendant is in police custody.
13.82 The Commissions maintain the view expressed in DP 69 that the scope of s 115 is adequate to cover most cases where real mischief may occur in the use of police photographs. If investigating police deliberately seek to avoid the picture identification constraints, s 138 may be able to be used to exclude the evidence. Given the lack of evidence that the provisions are being systematically avoided, this may be a sufficient safeguard and reduces the need to consider possible reforms to s 115.
 Alexander v The Queen (1981) 145 CLR 395, 409.
 Ibid, 409.
 Ibid, 409. See also Clarke v The Queen (1994) 71 A Crim R 58; D Patch, ‘Clarke’ (1994) 18 Criminal Law Journal 296, 297–298.
Evidence Act 1995 (Cth) s 115(1); Evidence Act 1995 (NSW) s 115(1); Evidence Act 2004 (NI) s 115(1).
 Uniform Evidence Acts s 115(5).
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985) (1985), .
Evidence Act 1995 (Cth) s 115(2); Evidence Act 1995 (NSW) s 115(2); Evidence Act 2004 (NI) s 115(2).
 The exceptions are: where the defendant’s appearance changed significantly between the time when the offence was committed and the time when the defendant was taken into custody; and where it was not reasonably practicable to make a picture of the defendant after the defendant was taken into custody: s 115(4).
Evidence Act 1995 (Cth) s 115(3); Evidence Act 1995 (NSW) s 115(3); Evidence Act 2004 (NI) s 115(3).
 Uniform Evidence Acts s 115(3)(a) and (b).
 Ibid s115(2).
 Alexander v The Queen (1981) 145 CLR 395, 408–409. Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 Alexander v The Queen (1981) 145 CLR 395, 409–410.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), , fn 32; Australian Law Reform Commission, Evidence, ALRC 38 (1987), –.
 Alexander v The Queen (1981) 145 CLR 395, 418.
R v McKellar  NSWCCA 523, , . It has also been held that an accused who is in gaol is not ‘in the custody of a police officer’ for the purposes of s 115: R v Batty (Unreported, New South Wales Court of Criminal Appeal, McInerney, Abadee and Bruce JJ, 6 August 1997).
 S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.9800].
 Ibid, [1.3.9800] fn 777. Odgers cites, inter alia, R v Miller (1980) 25 SASR 170; R v O’Donoghue (1988) 34 A Crim R 397.
R v McKellar  NSWCCA 523.
 Ibid, . In this he was assisted by the appellant’s father, an Aboriginal Community Liaison Officer and a message on local radio stations seeking volunteers.
 Ibid, .
 Ibid, .
 Ibid, . It was not a condition of the appellant’s bail that he attend an identification parade nor could such a condition legitimately have been imposed. The bail determination and the conditions, if any, imposed upon the appellant related to other offences unconnected with the robbery.
 However, the pictures used still cannot show the defendant in police custody: Uniform Evidence Acts s 115(2).
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 10–3.
 Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005. The NSW DPP states that it is not implying that it is aware of any occasion on which police have avoided the application of the picture identification provisions.
 New South Wales Public Defenders Office, Submission E 50, 21 April 2005.
 Office of the Victorian Privacy Commissioner, Submission E 115, 30 September 2005.
 New South Wales District Court Judges, Submission E 26, 22 February 2005.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 Alexander v The Queen (1981) 145 CLR 395, 408–409.
 New South Wales District Court Judges, Submission E 26, 22 February 2005.
 S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.9800]; Office of the Victorian Privacy Commissioner, Submission E 115, 30 September 2005.