3ZM Identification parades

(1)

This section applies to identification parades held in relation to offences.

(2)

Subject to subsection (3) and to section 3ZN, an identification parade:

(a)

may be held if the suspect agrees; or

(b)

must be held if:

(i)

the suspect has requested that an identification parade be held; and

(ii)

it is reasonable in the circumstances to do so.

(2A)

Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:

(a)

the kind of offence, and the gravity of the offence, concerned;

(b)

the likely importance in the circumstances of the evidence of identification;

(c)

the practicality of holding an identification parade, having regard, among other things:

(i)

if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and

(ii)

in any case—to whether an identification was made at or about the time of the commission of the offence; and

(d)

the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.

(3)

An identification parade must not be held unless the suspect has been informed that:

(a)

he or she is entitled to refuse to take part in the parade; and

(b)

if he or she refuses to take part in the parade without reasonable excuse evidence of that refusal and of any identification of the suspect by a witness as a result of having seen a photograph or of having seen the suspect otherwise than during an identification parade may be given in any subsequent proceedings in relation to an offence; and

(c)

in addition to any requirement under section 3ZN, a legal representative or other person of the suspect's choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.

(4)

The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.

(5)

An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.

(6)

Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:

(a)

the parade must consist of at least 9 persons;

(b)

each of the persons who is not the suspect must:

(i)

resemble the suspect in age, height and general appearance; and

(ii)

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;

(c)

unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;

(d)

no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;

(e)

if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;

(f)

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 such a manner and:

(i)

a legal representative or other person of the suspect's choice is present with the witness; or

(ii)

the parade is recorded by a video recording;

(g)

nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;

(h)

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 must be reminded that the members of the parade have been chosen on the basis of physical appearance only;

(i)

the suspect may select where he or she wishes to stand in the parade;

(j)

if more than one witness is to view the parade:

(i)

each witness must view the parade alone; and

(ii)

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

(iii)

the suspect may change places in the parade after each viewing;

(k)

each witness must be told that:

(i)

the suspect may not be in the parade; and

(ii)

if he or she is unable to identify the suspect with reasonable certainty he or she must say so;

(l)

the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;

(m)

if the parade is not recorded by a video recording:

(i)

the parade must be photographed in colour; and

(ii)

a print of a photograph of the parade that is at least 250mm × 200mm in size must be made available to the suspect or his or her legal representative; and

(iii)

the constable in charge of the parade must take all reasonable steps to record everything said and done at the parade and must make a copy of the record available to the suspect or his or her legal representative;

(n)

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.

(7)

Nothing in this Act affects the determination of the following questions:

(a)

whether or not evidence of a suspect having refused to take part in an identification parade is admissible;

(b)

if evidence of such a refusal is admissible, what inferences (if any) may be drawn by a court or jury from the refusal;

(c)

whether, after such a refusal, evidence of alternative methods of identification is admissible.

(8)

If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.