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;
Without the eyewitness identification there was almost nothing to implicate the accused in the alleged robbery. The grounds for exclusion were argued as statements of general principle (perhaps to keep options open for trial) an approach which Penfold J found puzzling [at 11 and 12]:
The applicant’s submissions, although filed nearly seven months after the prosecutor filed his statement of facts, barely refers either to that statement of facts or to any of the many affidavits from which that statement has been drawn. The prosecutor has advised that no agreement was able to be reached on the facts, but counsel for the applicant has not identified any particular facts that are in dispute, nor has he offered any evidence to contradict any of the evidence relied on by the prosecutor.
Noting that this application is for the applicant to make out, I do not understand why counsel for the applicant has declined to engage in any contest about the facts if his instructions are that there is evidence for a version of the facts that might be more supportive of the application. Whatever the reason, it presumably also explains why counsel’s submissions are largely uncluttered by reference to any facts relevant to this application. Be that as it may, the application needs to be dealt with, and so, with two exceptions that are discussed ... below, I propose to determine this matter on the basis of the statement of facts filed in November 2009 and the affidavits on which it relies.
It was argued that a refusal to participate in an identification parade could only be made after the suspect was made aware of the consequences of their refusal (including, but not limited to, the fact that the refusal would allow investigators to use picture identification evidence). There isn't any specific reference to that kind of requirement in the Evidence Act.
Penfold J was asked to exclude from evidence the photo array that was put together after the suspect had refused a parade. He considered the Evidence Act 1995 (Cth), which is identical with the Victorian statute. (He was also obliged to consider the Crimes Act 1900 (ACT), which imposes further obligations on investigators).
Penfold J [at 69]:
In the absence of any legislative basis or other authority, I reject counsel’s proposition that a refusal to take part in an identification parade can only be made effectively after a suspect has received legal advice. Counsel’s reliance on the contra proferentum rule seems to me to be both odd and ineffective in relation to legislation relating to criminal investigations rather than contracts and other agreements.
It's possible that an argument directed at Part 3.11 (the discretions) might have been more successful than an attempt to persuade the Court to infer unwritten requirements into Part 3.9 (that deals specfically with identification).
Counsel submitted that all of the elements of a proposed line-up (presumably some other similar looking people to the suspect, willing to participate) needed to be present before it could be refused. That's similar to the arguments in Victoria that led to s 49(1A) being added to the Road Safety Act 1986. Sections 113 to 115 of the Evidence Act are silent on whether a parade needs to be ready to go or not when the invitation is made.
Penfold J rejected this argument as well, at 72:
There is no suggestion in [the ACT legislation] or elsewhere that a valid refusal can only be made after the identification parade has been organised as required by s 233 and is ready to take place. It may well be that a suspect could refuse to take part in an identification parade even at that last minute, but I can see no basis for finding that this is the only point at which an effective refusal can be made. If there is a method of interpreting s 233, 235 or other relevant provisions to this effect, or authority supporting counsel’s submission, he did not see fit to share it with me. Accordingly I reject counsel’s propositions that a particular identification parade must be organised, and that all the details of that parade must be communicated to the suspect, before a suspect can “refuse” to take part in the parade for the purposes of the Evidence Act and Crimes Act provisions.
The Court found that changes in the size and the electronic storage and transmission of the photo of the accused did not mean that the photo that was placed in an array of photos of other women was no longer a photo of the accused.
Penfold J [at 97 - 99]:
To the best of my knowledge (no evidence was offered on the topic), it cannot be said that a digital photograph has a specified set of colour levels when taken, but even if it does, I am satisfied that a photograph taken “in colour” does not cease to be that photograph because it is displayed on a monitor or other device, or printed, in black and white, sepia, faded colours, intensified colours or colours in which the red/blue/yellow levels have been varied. In saying this I do not rule out the possibility that changes in colour levels, or changes to the colour of a specific aspect of the photograph, might affect the fairness of a photo board process, or the probative value of a photo board identification, in particular circumstances.
Similarly a change in pixelation or file size might affect the definition and clarity of a photograph, but it does not turn it into a different photograph; again, the use, in a photo board, of a photograph of a suspect with a distinctly different pixelation or file size from the other photographs used in that photo board might raise questions of fairness or probative value, but would not render the photo board non-compliant on the ground that the photograph of the suspect is not the photograph taken at the required time, or is not a photograph of the suspect at all.
I am satisfied that the image of the applicant did not cease to be a photograph of the applicant taken on the night of her arrest by reason of changes to its colour levels, pixelation or file size.
A ruling was made allowing the evidence to be admitted at trial.