MLL218 Study Guide - Final Guide: Eyewitness Identification, Strada Statale 36 Del Lago Di Como E Dello Spluga, Nsw Law Reports
24 May 2018
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7 Identification Evidence
POLICE PHOTOGRAPHING OF SUBJECTS
Common Law:
PO may request that a suspect submit to being photographed for the purpose of
idetifiatio ol. The a ot photogaph “ o ee pats of “s od ithout “s
consent) to record its condition for other purposes, even where this was related to a crime
investigation. BUT Crimes Act s464T(3)(e) may now permit this.
Prisoners must be photographed under section 28 of the Corrections Act 1986 (Vic) as soon
as possile as the pisoes eeptio to piso.
Photographs such as these may be disclosed to a police officer if the disclosure is made to
assist them in performing their official duties: s 30(3)(d)).
- the photographs may also be used for the purposes of photo-identification in the
course of police investigations.
Federal:
3Z Crimes Act: PO sergeat o highe a take idetifiatio ateial fo a suspet ho
either
- provided their written consent or
- without their consent if reasonable:
o in establishing who the suspect is
o identify the suspect
o provide evidence to other at hand or some other offence s 3ZJ
PO may use reasonable force or may make an order: s3ZL
find more resources at oneclass.com
find more resources at oneclass.com
IDENTIFICATION PARADES
Police Manual Rules:
- No person can be compelled to participate in an identification parade, but police are
not required to tell a person that they do not have to participate.
- The request to take part in id should be taped.
- An identification parade must be held if the suspect requests one and it is practical
to do so.
- Dot sho the itess a photos efoehad
- The other people in the identification parade (minimum 8 plus suspect) must be of
similar age, height, general appearance and class of life as the person who is
standing for identification.
- A person who is being put up for identification must be told that:
o they can choose where they wish to stand among those in the parade,
o can change places, and
o can object to any person selected or to the arrangements made;
o they can have a friend, lawyer or relative present, so long as that friend,
lawyer or relative arrives within a reasonable time and agrees not to do or
say anything to interfere with the parade (= passive observer)
o the witnesses will not receive details of the person's identity.
- The witness should verbally id the person (e.g. it is No.6).
- Where it is practicable, and if all the participants consent, the parade should be
photographed before it begins.
Commonwealth Rules:
Same as above except
- Police must inform the suspect does not have participate. However, without a
reasonable excuse, evidence of that refusal and other form of ID would be presented
to the court which may prove prejudicial.
- Parade must be in a place where witness cannot be seen.
- Must be videoed or photographed in colour.
S 114 of Evidence Act gives priority to parade evidence other forms of ID evidence making
other forms inadmissible unless a parade was held.
No one is obliged, or can be compelled, to take part in an identification parade or
"line up". Failure or refusal to participate may be admissible evidence against an
accused person, not because an inference of guilt can be drawn from the refusal but
to establish why less satisfactory means of identification were used by the
investigating police.
Refusal:
The Crown may adduce evidence of the applicant's refusal to participate in an identification
parade, not as indicating guilt but to explain why the Crown did not use an identification
parade: R v Davies [2005] VSCA 90, (2005) 11 VR 314.
However, if allowed judge must give a discretion that this refusal does not mean guilty.
R v Clune (1982) VSC 1
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find more resources at oneclass.com
Facts:
W worked in jewelry store, was victim of armed robbery. C was
subsequently charged by police with the armed robbery; refused to
take part in identification parade.
Police arranged for W to:
Identify C from array of photos
Identify C from group of men sitting in room after C had been
arrested
Identify C while he was being taken to MMC with police
escort
Identify C while being charged at MMC
Identify C from the dock at the trial
Police also had eidee that stole ites ee i Cs possessio. C
was convicted, appealed.
Held:
Held:
Police could not compel D to take part in I.D. parade
Right not to take part in identification parade is not the same as right
not to be identified
Holding C specifically so that W could identify him in room was
improper
Police could arrange for W to identify suspect in circumstances that
do not involve a misuse of detention e.g. journeys to/from ct,
appearances in ct.
In circumstances (stress, lighting, personal qualities of W,
circumstances in which ID performed etc.) directions from judge
were inadequate (must give his weight to comments) (McGarvie:
unfairness resulting from unlawfulness of police conduct in placing C
in room would exclude that evidence)è appeal upheld, new trial
Dangers:
Craig v R (1933) CLR
Facts:
Eric Craig was tried 3 times for the murder of 16 year old Bessie OCoo
(V). V was found naked in a National Park outside Sydney. She had been
badly beaten and died without regaining consciousness.
No connection between Craig and V EXCEPT identification by 4 eyewitnesses
who saw Craig with V in a car and subsequently identified him è eyewitness
testimony essential to the prosecution case.
Issue:
Identifications by the eyewitnesses:
◼ Lawrence: 3 weeks after the event (NOT Craig)
◼ Watson: about 1 month after event, identified Craig in a line-
up
◼ Weeks: identified Craig during a hearing in the Coroners Court
about 1½ months after the event (identification from the bar
table)
◼ Harvey: identified Craig 3 months after the event in a line-up
at a gaol
◼ Mrs Watts: identified Craig 6 months after the event
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find more resources at oneclass.com
Document Summary
Po may request that a suspect submit to being photographed for the purpose of ide(cid:374)tifi(cid:272)atio(cid:374) o(cid:374)l(cid:455). The(cid:455) (cid:272)a(cid:374) (cid:374)ot photog(cid:396)aph o(cid:396) e(cid:448)e(cid:374) pa(cid:396)ts of (cid:859)s (cid:271)od(cid:455) (cid:894)(cid:449)ithout (cid:859)s consent) to record its condition for other purposes, even where this was related to a crime investigation. But crimes act s464t(3)(e) may now permit this. Prisoners must be photographed under section 28 of the corrections act 1986 (vic) as soon as possi(cid:271)le as the p(cid:396)iso(cid:374)e(cid:396)(cid:859)s (cid:396)e(cid:272)eptio(cid:374) to p(cid:396)iso(cid:374). 3z crimes act: po sergea(cid:374)t o(cid:396) highe(cid:396) (cid:373)a(cid:455) take (cid:858)ide(cid:374)tifi(cid:272)atio(cid:374) (cid:373)ate(cid:396)ial(cid:859) f(cid:396)o(cid:373) a suspe(cid:272)t (cid:449)ho either. Without their consent if reasonable: in establishing who the suspect is identify the suspect: provide evidence to other at hand or some other offence s 3zj. Po may use reasonable force or may make an order: s3zl. No person can be compelled to participate in an identification parade, but police are not required to tell a person that they do not have to participate.
