R v Sarlija [2009] ACTSC 127 (30 September 2009)

Last Updated: 26 October 2009

R v BENJAMIN MARK SARLIJA [2009] ACTSC 127 (30 September 2009)

EVIDENCE – pre-trial application to exclude picture identification evidence – accused declined to participate in identification parade until legal advice had been sought – identification made through use of a photo board – whether photo board ought to have been used where no express refusal to take part in an identification parade – whether reasonable to assume refusal – actual or constructive refusal could not be assumed in the circumstances – operation of s 115 Evidence Act 1995 (Cth) and s 235 Crimes Act 1900 (ACT).

EVIDENCE – pre-trial application to exclude picture identification evidence – identification made through use of a photo board where no refusal to take part in an identification parade – whether contravention of s 235 Crimes Act 1900 (ACT) by police investigators – onus on accused to show he was “otherwise available” to take part in identification parade – accused failed to establish contravention on balance of probabilities – identification evidence not liable to be excluded under s 138 Evidence Act 1995 (Cth).

POLICE PRACTICE AND PROCEDURE – whether photo board can properly be prepared when accused in custody – general prohibition against using photo board for identification where accused in custody does not prevent preparation of photo board while accused in custody – operation of s 115 Evidence Act 1995 (Cth).

Crimes Act 1900 (ACT), ss 233, 235

Evidence Act 1995 (Cth), ss 114, 115, 138

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

R v Atkinson [1997] ACTSC 14 (unreported, Higgins J, 24 March 1997)

R v Jones [1998] SASC 7021; (1998) 72 SASR 281

Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612

No. SCC 119 of 2008

Judge: Penfold J

Supreme Court of the ACT

Date: 30 September 2009

IN THE SUPREME COURT OF THE )

) No. SCC 119 of 2008

AUSTRALIAN CAPITAL TERRITORY )

R

v

BENJAMIN MARK SARLIJA

ORDER

Judge: Penfold J

Date: 30 September 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The application to exclude from Mr Sarlija’s trial the identification evidence obtained through the use of a photo board is refused.

Introduction

1. Benjamin Mark Sarlija has been arraigned on two counts of aggravated robbery committed on 11 December 2007 and has pleaded not guilty to each count.

Application for exclusion of evidence from trial

2. Mr Sarlija has applied for identification evidence, being evidence of an identification made by one of the victims of the robbery and obtained through the use of a “photo board”, to be excluded from his forthcoming trial.

3. At the hearing of the application, s 115 of the Evidence Act 1995 (Cth) and s 235 of the Crimes Act 1900 (ACT) were identified as relevant, as was the possibility of excluding the evidence under s 138 of the Evidence Act.

What is a “photo board”?

4. Section 235 of the Crimes Act provides limited circumstances in which photographs or other pictures may be used to enable witnesses to identify suspects. The section lays down rules for how identifications must be sought if the process is permitted to be used at all. The witness must be shown images of at least nine different people; the people who are not the suspect must resemble the suspect in age and general appearance, and must not have features that are markedly different from those described by the witness before he or she sees the images (s 235(2)(b)). Section 235 makes various other provisions to ensure that the process is fair, is properly recorded, and can be checked by the suspect’s legal representative.

5. I understand that, while the collection of images is commonly referred to as a “photo board”, the current practice is to collect electronic images and to use a computer screen to show the numbered images to the witness one at a time.

6. In the circumstances of this matter, whether identification evidence obtained using a photo board is admissible may depend in part on whether the suspect has refused to participate in an identification parade.

Did Mr Sarlija refuse to take part in an identification parade?

7. The first matter for determination is the question whether Mr Sarlija refused to participate in an identification parade.

Chronology

8. It is useful to set out a chronology of events leading up to the making of a photo board identification of Mr Sarlija.

(a) On 11 December 2007 a man and a woman robbed a couple on Northbourne Avenue.

(b) On 12 December Mr Sarlija was arrested. He was interviewed by police not including the informant Constable Gary Cameron (the interview was recorded and transcribed). At some time after that interview concluded, Constable Cameron spoke to Mr Sarlija and “offered him the opportunity” to take part in an identification parade.

(c) On 13 December Mr Sarlija was refused bail in the Magistrates Court.

(d) On 19 December Constable Cameron completed an AFP form requesting preparation of a photo board including a photograph of Mr Sarlija.

(e) On 3 January 2008 Constable Cameron was advised that the photo board was ready for use.

(f) On 9 January Mr Sarlija appeared again in the Magistrates Court and pleaded not guilty.

(g) On 11 January Mr Sarlija was granted bail by the Supreme Court.

(h) On 14 January the photo board was viewed by the complainants in relation to the robbery, and Mr Sarlija was identified by one of the complainants.

No express refusal to participate

9. It seems to be agreed that Mr Sarlija did not at any point expressly refuse to take part in an identification parade, and Mr Sarlija asserts that, at the time the photo board was used to obtain the identification concerned, he had not refused to do so.

Police handling of request to participate

10. As already mentioned, Mr Sarlija was arrested the day after the robbery and interviewed by police. There is nothing in the recorded interview about the possibility of Mr Sarlija taking part in an identification parade, but Constable Cameron, who spoke to Mr Sarlija after the recorded interview, gave evidence in cross-examination during the committal hearing on 27 March 2008 as follows:

In your statement you say that you offered Mr Sarlija the opportunity to participate in an identification parade, do you recall the exact words that you used, or - - -? --- No, I don’t recall the exact words, no.

In that statement you say that he responded by saying that he wanted to seek legal advice before answering? --- That’s correct.

Do you recall the exact words he used, or is that the best - - -? --- I don’t recall the exact words but that was to the effect.

And did you offer him legal advice at that point in time - or, I’m sorry. Did you offer him the opportunity to contact someone to get legal advice at that point in time? --- We did, which he declined. He said he’d speak to his lawyer in the morning.

Did that happen, did that conversation occur at that point in time, did it, after the question about the identification parade? --- I’m sorry, could you repeat the question.

In your statement - - -? --- Yes.

- - - you describe the conversation you had with Mr Sarlija about the identification parade. You say you offered him the opportunity to participate? --- Yes.

And he said he wanted to seek legal advice. In your statement you then go on to say that you’ve asked that he inform police himself or for his solicitor his decision on that matter? --- Yes.

11. In cross-examination Constable Cameron explained that the offer of legal advice was not reflected in his statement simply because of an omission on his part.

12. Constable Cameron also gave evidence in the Magistrates Court that:

(a) he had attended court on the following day (13 December) for Mr Sarlija’s bail application;

(b) Mr Sarlija was legally represented at that time;

(c) Constable Cameron had given evidence opposing bail;

(d) Constable Cameron did not after the conclusion of the bail proceedings approach Mr Sarlija’s solicitor to discuss the identification parade; and

(e) Constable Cameron had not approached Mr Sarlija about the identification parade while Mr Sarlija was in the remand centre.

13. The following exchange occurred in cross-examination:

So your only contact with Mr Sarlija in relation to the identification parade was that conversation that you just referred to between six and 7 pm on 12 December? That’s correct, yes.

14. Constable Cameron also gave evidence that:

(a) on 19 December, while Mr Sarlija was in custody, he had requested preparation of a photo board in relation to Mr Sarlija;

(b) on 3 January, while Mr Sarlija was still in custody, the photo board was ready to be viewed;

(c) Constable Cameron did not attend Mr Sarlija’s appearance in the Magistrates Court on 9 January; and

(d) he was not aware that Mr Sarlija had applied for bail from the Supreme Court.

15. Constable Cameron’s evidence makes it clear that, despite several opportunities, he did not take any steps to get a final answer from Mr Sarlija about whether he would take part in an identification parade. He did not take the opportunity presented by Mr Sarlija’s bail application on 13 December to approach either Mr Sarlija or his legal representative about the identification parade. Nor did he subsequently try to contact Mr Sarlija or his lawyer, even during the following few weeks while Mr Sarlija remained in custody and was therefore, presumably, easily located by an AFP officer.

16. Clearly, a police officer cannot force a suspect to give a final answer about taking part in an identification parade. Even if Constable Cameron had approached Mr Sarlija or his lawyer on any or all of the occasions mentioned above, he would not necessarily have got a more definite answer than had previously been given. Equally clearly, a suspect cannot be allowed to stymie a police investigation indefinitely by refusing or failing to give an unequivocal answer to a request to take part in an identification parade. This means that at some point after a request is made, a police officer must, despite the absence of an unequivocal answer to that request, be entitled to treat a suspect as having refused to take part in an identification parade. It is impossible to lay down any general rules for when the police officer is able to do that, but I note that the accurate identification of offenders is promoted by the earliest possible use of whatever identification methods are legitimately available to investigating officers; from this I conclude that the time the police officer needs to allow to the suspect will not be very long. On the other hand, concluding that the police officer need not give an extended time for a suspect to respond is not the same as concluding that a police officer need not make any effort to clarify a suspect’s position.

17. In this case, it seems to me that it was not enough for Constable Cameron to ask once but then, without taking any further steps to seek an answer even when he had ready access to Mr Sarlija, to assume a refusal. A second request from Constable Cameron made at a point when he could reasonably have expected that Mr Sarlija would have spoken to his lawyers, and possibly including advice to Mr Sarlija that a failure to respond within a specified time would be treated as a refusal, might well have been sufficient in the circumstances.

18. Instead, the only discussion Constable Cameron had with Mr Sarlija concluded on the basis that Mr Sarlija would advise police of his answer after speaking to his lawyer, and no deadline for that advice was imposed by police or volunteered by Mr Sarlija. In those circumstances it is not clear how or when Constable Cameron could legitimately have concluded, without having talked to Mr Sarlija or his lawyers again, that Mr Sarlija’s failure to get back to him had become a refusal to participate in an identification parade.

19. The lawyer representing Mr Sarlija on his bail application in the Magistrates Court was a duty lawyer from the Legal Aid Office. Counsel for Mr Sarlija concedes that the duty lawyer would have had the statement of facts prepared by police, which contains the following paragraph:

[Mr Sarlija] subsequently requested to seek legal advice before deciding where [sic] or not to participate in an identification parade.

20. That is, Mr Sarlija’s legal representative at the bail application could have become aware that there was or might have been an outstanding question about participation in an identification parade, and that Mr Sarlija apparently intended to seek legal advice about that question. However, I do not consider that it is reasonable to suggest that it was the responsibility of the Legal Aid duty lawyer to identify that issue and ensure that it was pursued with Mr Sarlija. Nor is it clear that giving advice about taking part in an identification parade would have been an appropriate task to be assumed by a duty lawyer assigned to deal with Magistrates Court bail applications.

21. I note also that the sentence in the police statement of facts set out at [19] above is followed by the words “The second accused declined the opportunity to participate in an identification parade”. By contrast with the position of the Legal Aid duty lawyer, who might or might not have actually become aware of the outstanding issue of the identification parade, it is clear that whoever prepared the statement of facts was positively aware that Mr Sarlija (in contrast to his co-accused) had not, at the time described in the statement of facts, refused to take part in the identification parade.

22. Counsel for the DPP submitted that once Mr Sarlija had pleaded not guilty on 9 January, it was reasonable to assume that he would have discussed the question of the identification parade with his lawyers, and that his silence about the parade after that time could reasonably have been interpreted as a refusal to participate.

23. I am not persuaded by this submission. Both s 115 of the Evidence Act and s 235 of the Crimes Act operate by placing significant limits on the use of photo board identification. It must be the responsibility of the investigating officers to satisfy themselves that a photo board identification will be admissible before they obtain such an identification; it is not the responsibility of the suspect to act so as to ensure that the processes adopted by those officers comply with relevant requirements. Making a series of assumptions about a suspect’s dealings with his or her lawyers, and about how those dealings might be reflected in events during court proceedings, seems to me to be a long way short of a reliable or defensible way for a police officer to ensure that his or her investigations will produce admissible evidence. This is particularly so because a suspect who says “I want to take legal advice before answering” is not in those words saying “As soon as I get legal advice I will answer”.

24. I reiterate, however, my comments at [16] above that there are relatively simple ways in which, even without getting a clear answer from a suspect, a police officer may be able to establish a constructive refusal sufficient to act on.

Relevant authorities

25. In R v Atkinson [1997] ACTSC 14 (unreported, Higgins J, 24 March 1997), also a case involving a suspect who had deferred a decision about an identity parade while he took legal advice and did not subsequently give a final answer to police, Higgins J, as he then was, without making a formal finding that there had not been a refusal to take part in an identification parade, said:

He did indicate that he might agree, after legal advice, to take part in an identification parade. However, the issue was not later addressed or revisited, though there was no lack of opportunity for the investigating police so to do.

26. Counsel for the DPP referred me to R v Jones [1998] SASC 7021; (1998) 72 SASR 281 in which the Court of Criminal Appeal, South Australia (Lander J with whom Prior and Wicks JJ agreed) found that, in circumstances not dissimilar from the current ones as to the accused’s approach to participation in an identification parade, identification obtained through the use of photographs was properly admitted at the trial. This case did not apparently involve statutory provisions governing when photograph identification was admissible, and Lander J’s finding was not in express terms that the accused had “refused” to take part in an identification parade. Rather he said (at 291-292):

... the learned trial judge thought it appropriate to refuse the invitation to exercise the discretion to exclude the evidence because he was satisfied that the police had given the appellant every opportunity to participate in an identification parade. He was satisfied that the failure to hold the identification parade was caused by the appellant’s own failure to indicate his willingness to participate.

...

There was really no dispute between the police and the appellant that the police, within a week of the appellant’s arrest, went to the appellant’s house and offered him the opportunity to participate in an identification parade. The appellant consulted his lawyer within a few days of that time but at no stage indicated a willingness to participate. The police did not attempt to obtain evidence of identification until nearly a month after the offer made by them to the appellant.

...

The appellant never finally refused to go into a line-up. He said in his evidence that he only learnt for the first time at his trial that photographic evidence had been used for the purpose of his identification. The fact is that at no time between 5 April and the date of his trial did he indicate that he would participate in the line-up or an identification parade.

Whilst it is so that no attempt was made to ascertain whether the appellant had obtained legal advice, the fact is that he had. He saw a solicitor within a few days of the conversation with Constable Snowden and Constable Vormelker. It was open to the appellant on the voir dire hearing to call evidence from his solicitor to the effect that the solicitor was never advised that the appellant had been offered the opportunity of a line-up which, if that was the evidence, would indicate perhaps that the appellant had not understood the importance of the conversation with the police officers. No such evidence was led.

... in circumstances where the appellant either refused or neglected to participate in the line-up, it cannot be said, in my opinion, that the learned trial judge erred in refusing to exercise his discretion to exclude this evidence.

27. While noting the respect that must be accorded to decisions of Courts of Appeal, including those of other jurisdictions (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [35]), I do not consider that the facts in R v Jones or Lander J’s conclusions require me, for the purpose of applying a statutory test for the admissibility of evidence that was not relevant in R v Jones, to find that Mr Sarlija “refused” to participate in an identification parade.

Conclusion—no refusal to participate in identification parade

28. In summary, on the basis of the material available to me, nothing had happened before 14 January 2008 when the photo board was viewed that amounted to an actual or constructive refusal by Mr Sarlija to take part in an identification parade, and nor was there any point at which Constable Cameron could legitimately have concluded that Mr Sarlija had refused to take part. That is, Mr Sarlija had not by 14 January refused for any relevant purposes to take part in an identification parade.

29. There was no evidence suggesting that Mr Sarlija had been advised of all the matters set out in s 233(3) of the Crimes Act, to the effect that he was entitled to refuse to take part in an identification parade; that if he refused, evidence of the refusal and other identification evidence might be admitted at his trial; and that he was in general entitled to have a legal representative or other person present while he decided whether to take part in a parade and while the parade was going on. This apparent failure does not seem to be directly relevant in the light of my findings that Mr Sarlija had not in any case refused to take part in an identification parade. I note, however, that the effective deadline for giving this advice to a suspect is before the identification parade is held rather than, apparently, at a separately ascertainable earlier time; it is not clear that a failure to give any of this advice before an explicit refusal to take part would necessarily vitiate the refusal.

30. Having concluded that Mr Sarlija did not refuse to take part in an identification parade, I do not need to consider the questions raised by Mr Sarlija’s counsel about the interaction between s 233(7) of the Crimes Act (requiring certain questions about a refusal to be decided according to the common law) and ss 114 and 115 of the Evidence Act.

Admission of photo board identification evidence

31. Section 115 of the Evidence Act provides for the exclusion of “picture identification evidence” in specified circumstances. Section 235 of the Crimes Act makes detailed provisions for the conduct of a process for the identification of a suspect using photographs. Sections 115 and 235(1) are set out in the Appendix to this judgment.

Evidence Act provisions

32. In the absence of evidence or argument to the contrary, I assume that the photographs viewed by the complainants satisfied the reference to “pictures kept for the use of police officers” and that the identification evidence to be given by the complainant therefore satisfies the definition of “picture identification evidence” in s 115(1) of the Evidence Act.

33. Section 115 relevantly makes picture identification evidence inadmissible if the defendant was in custody when the pictures were examined (s 115(5)), unless:

(a) the defendant had refused to take part in an identification parade;

(b) the defendant’s appearance had changed significantly between the time of the offence and the time when the defendant was taken into custody; or

(c) it would not have been reasonable to have held an identification parade including the defendant.

34. On the face of it, there is no basis for finding the photo board identification evidence inadmissible under s 115(5) because Mr Sarlija was not in custody when the photo board was used. However, an argument was made to the general effect that the photo board evidence was somehow affected by Constable Cameron’s actions in requesting preparation of the photo board while Mr Sarlija was in custody

35. The photo board was requested from appropriate AFP officials while Mr Sarlija was in custody. It was used at a point when Constable Cameron had no reason to believe that Mr Sarlija was not still in custody and might have positively believed (albeit wrongly) that he was in custody. Nothing has been put to me about exactly when, before 14 January when the photo board was used, Constable Cameron formed the view that Mr Sarlija had refused to take part in an identification parade, but since I have found that there was no refusal, I cannot see that this question has any wider significance.

36. It has not been suggested that Constable Cameron deliberately used the photo board inappropriately, so I assume that he believed it was legitimate to use the photo board and that this belief was based on his view that Mr Sarlija had refused to participate in an identification parade. It seems that when Constable Cameron conducted the photo board process with the complainants, he was acting on two assumptions, neither of which turns out to be correct, one being that Mr Sarlija was in custody, the other being that he had refused to participate in an identification parade. As it happens, the fact that Mr Sarlija had been granted bail before the photo board was used means that s 115(5) does not apply, and therefore Constable Cameron’s mistaken belief that Mr Sarlija had refused to participate in an identification parade becomes irrelevant.

37. As noted above, Constable Cameron initiated the preparation of the photo board while Mr Sarlija was in custody and at a point when he had not, according to my finding, refused to take part in an identification parade. Mr Sarlija’s counsel said this:

... it was during the period that Mr Sarlija was in custody that the police commenced the process for the picture board identification. And we say that’s a relevant thing to consider under the ACT Crimes Act.

But it’s also interesting to note that that’s not a process which is sanctioned by the Evidence Act. Even though the preparation of the photo board itself is not directly outlawed we’d say it’s essentially against the spirit of what’s contained in the Evidence Act. But we concede that there’s no prohibition because the act of identification took place after he was released.

HER HONOUR: And it’s against the spirit because - - -

MR GILL: Because the whole process of preparing for the identification act took place under circumstances where an act of identification would have been prohibited. Fortuitously for the prosecution he was released before the physical act of identification took place.

38. I cannot see that the photo board identification can be taken to be in some way tainted by the preparation of the photo board at a time when it could not have been used to produce an admissible identification. I accept generally the submissions of Mr Sarlija’s counsel that in the interests of obtaining more rather than less reliable identification evidence, identification parades are to be preferred over photo boards. However, to the extent that this approach can be identified as, relevantly, the “spirit” of the Evidence Act, it seems to me that that “spirit”, in favouring more rather than less reliable identification evidence, must also be taken to favour more rather than less contemporaneous identifications. I cannot see that the “spirit” of the Evidence Act would be against any steps being taken in relation to a photo board simply because the possibility of an identification parade remains open, if taking those steps might mean that any permitted attempt at identification takes place sooner rather than later.

39. The relevant provisions in the Evidence Act and the Crimes Act apply explicitly to the circumstances of the use of photo boards—they do not apparently apply to the circumstances of the preparation of photo boards. As indicated above, I do not consider that the “spirit” of the Evidence Act tells against early preparation of photo boards, and there is no other reason that I can think of for inferring separate restrictions on the administrative activity of preparing photo boards.

40. Noting the desirability of avoiding delays in identification, it would in general be both sensible and unobjectionable to get the process of preparing a photo board (which seems to take some days) started even before it is clear that there will be any basis for using the photo board.

Crimes Act provisions

41. Section 235 of the Crimes Act makes detailed rules for the conduct of a photo board process. If those rules have been breached, then the evidence thereby obtained may be liable to be excluded from a trial under s 138 of the Evidence Act (as evidence obtained improperly or in contravention of an Australian law, or in consequence of such an impropriety or contravention).

42. Section 235(1) of the Crimes Act deals with when a photo board process may be conducted. The remaining subsections deal with how such a process must be conducted. For present purposes only s 235(1) is relevant, because there is no challenge to the legitimacy of the photo board process as it was conducted, only to whether the process ought to have been conducted at all.

43. Subsection 235(1) prohibits a police officer conducting a photo board process if the suspect is in custody or otherwise available to take part in an identification parade; there are two exceptions to this prohibition:

(a) if the suspect concerned has refused to take part in an identification parade; or

(b) if the holding of an identification parade would be unfair to the suspect or unreasonable in the circumstances.

44. Mr Sarlija was not in custody when the photo board process took place. I have already found (at [28] above) that Mr Sarlija had not refused to take part in an identification parade. Counsel for Mr Sarlija submitted that there is no basis for finding that the holding of an identification parade would have been unfair to Mr Sarlija or unreasonable, and counsel for the DPP did not dispute this.

45. Thus, s 235(1) would have been breached by the conduct of the photo board process only if Mr Sarlija was “otherwise available to take part in an identification parade”.

46. In matters involving s 138 of the Evidence Act, the onus is on the applicant to establish on the balance of probabilities an impropriety or contravention of Australian law, before the respondent is required to persuade the court to exercise its discretion under s 138 to admit the evidence in spite of the impropriety or contravention (see Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612 at [33]).

47. Thus in this case it is not up to the prosecution to rule out the possibility that Mr Sarlija was otherwise available, but up to Mr Sarlija to establish that he was. It is not clear what “otherwise available to take part in an identification parade” is intended to cover. Counsel for Mr Sarlija says that “at no stage did Mr Sarlija become unavailable”, but did not explain in what way Mr Sarlija was “available” to take part in an identification parade. I have found that Mr Sarlija had not “refused” the invitation to take part in an identification parade, but it is much harder to see how, during the period when he was failing to respond to that invitation, Mr Sarlija could maintain that he was nevertheless “available” for such a parade so as to engage the prohibition in s 235(1).

48. Accordingly, I find that Mr Sarlija has not established any breach of s 235(1) of the Crimes Act, and there is accordingly no need to consider exercising the discretion under s 138 of the Evidence Act to exclude evidence obtained through the photo board process.

Conclusion

49. Despite my finding that Mr Sarlija did not refuse to participate in an identification parade, he has not established either:

(a) that the identification evidence obtained through the use of a photo board is inadmissible under s 115(5) of the Evidence Act; or

(b) that the use of that photo board was in breach of s 235(1) of the Crimes Act so as to provide a basis for the exercise of the discretion to exclude such evidence from the trial under s 138 of the Evidence Act.

Orders

50. Accordingly, the application to exclude from Mr Sarlija’s trial the identification evidence obtained through the use of a photo board is refused.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

Associate:

Date: 30 September 2009

Counsel for the applicant: Mr S Gill

Solicitor for the applicant: Legal Aid Office (ACT)

Counsel for the respondent: Mr M Thomas

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 21 October 2008

Date of judgment: 30 September 2009

Appendix—Legislative provisions

Evidence Act 1995 (Cth)

115 Exclusion of evidence of identification by pictures

(1) In this section:

picture identification evidence means 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.

(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.

(3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if:

(a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged; and

(b) the picture of the defendant that was examined was made before the defendant was taken into that police custody.

(4) Subsection (3) does not apply if:

(a) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or

(b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody.

(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:

(a) the defendant refused to take part in an identification parade; or

(b) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or

(c) it would not have been reasonable to have held an identification parade that included the defendant.

(6) Subsections 114(3), (4), (5) and (6) apply in determining, for the purposes of paragraph (5)(c) of this section, whether it would have been reasonable to have held an identification parade.

(7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant:

(a) if the picture of the defendant was made after the defendant was taken into that custody—inform the jury that the picture was made after the defendant was taken into that custody; or

(b) otherwise—warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence.

Note: Sections 116 and 165 also deal with warnings about identification evidence.

(8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the defendant.

(9) This section applies in addition to section 114.

(10) In this section:

(a) a reference to a picture includes a reference to a photograph; and

(b) a reference to making a picture includes a reference to taking a photograph.

138 Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Crimes Act 1900 (ACT)

235 Identification by means of photographs

(1) If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a police officer investigating the offence shall not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless—

(a) the suspect has refused to take part in an identification parade; or

(b) the holding of an identification parade would be—

(i) unfair to the suspect; or

(ii) unreasonable in the circumstances.