1 / 5 / 2024

Identification Parades and Photo boards

Identification evidence can often be crucial in criminal prosecutions, and as stated by Loukas-Karlsson J “…the potential dangers of identification evidence are well known to the Courts. The Legislature has similarly recognised that danger, in part by legislating s 233 and 235 of the Crimes Act 1900 (ACT): see DPP v Higgins (2023) at [1].

Identification is one of the key elements of an offence that the Prosecution is required to prove beyond a reasonable doubt. Two common forms of identification evidence are led through either an identification parade or photo boards.

What is an Identification parade?

An Identification parade involves suspect’s participation, with a number of other members of the community and a witness will attempt to identify a suspect. The legislation is specific in that it shall be arranged and conducted in a way that will not unfairly prejudice the suspect .

Section 233 (6) of Crimes Act 1900 (ACT) sets out how the parade is to be arranged and conducted:

  1. The parade shall consist of at least 9 persons;
  2. Each of the persons who is not the suspect shall –
    1. Resemble the suspect in age, heigh and general appearance; and
    2. Not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;
  3. Unless it is impractical for anothaer police officer to arrange or conduct the parade, no police officer who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
  4. No person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
  5. If it is practicable to do so, numbers should be placed next to each participant to allow the witness to make an identification by indicating the number of the person identified;
  6. the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in that way and—
    1. a legal representative or other person of the suspect’s choice is present with the witness; or
    2. the parade is recorded by a video recording;
  7. nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
  8. if the witness so requests—members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness shall be reminded that the members of the parade have been chosen on the basis of physical appearance only;
  9. the suspect may select where he or she wishes to stand in the parade;
  10. if more than 1 witness is to view the parade—
    1. each witness shall view the parade alone; and
    2. the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and
    3. the suspect may change places in the parade after each viewing;
  11. each witness shall be told that—
    1. the suspect may not be in the parade; and
    2. if he or she is unable to identify the suspect with reasonable certainty he or she shall say so;
  12. the parade shall be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording shall be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
  13. if the parade is not recorded by a video recording—
    1. the parade shall be photographed in colour; and
    2. a print of a photograph of the parade that is at least 250mm  x 200mm in size shall be made available to the suspect or his or her legal representative; and
    3. the police officer in charge of the parade shall take all reasonable steps to record everything said and done at the parade and shall make a copy of the record available to the suspect or his or her legal representative;
  14. the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.

What is a Photo board?

The second form of identification that can be used is a photo board. This takes place by having an image of a suspect compiled alongside other images of members of the community. The witness will then attempt to identify the suspect by viewing these images.

Section 235 (2) Crimes Act 1900 specifies the rules and procedure that is to be followed by Police in showing an image of a suspect to a witness:

  1. the police officer shall show to the witness photographs or pictures of at least 9 different persons;
  2. each photograph or picture of a person who is not the suspect shall be of a person who—
    1. resembles the suspect in age and general appearance; and
    2. does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
  3. the police officer shall not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
  4. if practicable, the photograph or picture of the suspect shall have been taken or made after he or she was arrested or was considered as a suspect;
  5. the witness shall be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
  6. the police officer shall keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
  7. the police officer shall notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
  8. the police officer shall retain the photographs or pictures shown, and shall allow the suspect or his or her legal representative, on application, an opportunity to inspect the photographs or pictures.

Procedure

The legislation is clear that a photo board cannot not be used unless the suspect has refused to take part in an identification parade or the holding of an identification parade would be either unfair to the suspect or unreasonable in the circumstances .

Police may attempt to use a photo board without first following the legislation in asking the suspect whether they wish to participate in an identification parade.

The Police may not be deliberate or reckless in avoiding doing over an identification parade and moving straight to use of a photo board. As Mossop  notedJ in Cunnigham (No 2) at [20] this would could be characterised as “… a misapprehension of the strength of the obligation in s 235 of the Crimes Act and institutional incentives to favour the use of convenient and flexible methods of identification rather than inconvenient and cumbersome methods such as identification parades”.

The specific legislation requirements reflect a “legislative command” about the appropriate criminal process. A contravention of the legislation like this should give rise to an objection and the Prosecution may not be permitted to adduce photo board evidence.

Mitchell Greig, Lawyer


1 S233 (5) Crimes Act 1900 (ACT).

2 S 235 Crimes Act 1900 (ACT)