Crimes Act 1914

Part IAA - Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)  

Division 4 - Arrest and related matters  

SECTION 3ZO   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 constable investigating the offence must 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

(aa) the suspect's appearance has changed significantly since the offence was committed; or

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

(i) unfair to the suspect; or

(ii) unreasonable in the circumstances.

(1A)    
Without limiting the matters that may be taken into account in determining whether it would be unreasonable 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.

(2)    
If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:

(a) the constable must show to the witness photographs or pictures of at least 9 different persons;

(b) each photograph or picture of a person who is not the suspect must be of a person who:

(i) resembles the suspect in age and general appearance; and

(ii) 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;

(ba) the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;

(c) the constable must 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;

(d) if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;

(e) the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;

(f) the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;

(g) the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;

(h) the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.

(3)    
If:

(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and

(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and

(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and

(d) the photograph or picture is admitted into evidence;

the jury must be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.

(4)    
If a suspect is in custody in respect of an offence, a constable investigating the offence must not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.

(5)    
If, after a constable investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4):

(a) a suspect comes into custody in respect of the offence; and

(b) an identification parade is to be held in relation to the suspect;

the constable in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.

(6)    
If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the constable in charge of investigating the offence must, upon application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness concerning the picture.

(7)    
If a suspect is in custody in respect of an offence and a constable investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a constable from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.