The Law Handbook 2024

192 SECTION 3: Fines, infringements and criminal law refusal, but to establish why less satisfactory means of identification were used by the investigating police. Section 114 of the Evidence Act implicitly gives priority to identification parade evidence over other visual identification evidence, by making other visual identification evidence inadmissible unless an identification parade was held, or there were good reasons why it was not held. Identification parade procedure and rules The identification parade procedure is governed by the Victoria Police Manual (operations 111: identification of suspects and offenders), which are designed to provide maximum fairness to an accused person. Whether the procedures actually provide fairness in a particular case is always open to being challenged by an accused. The following is a summary of the rules that apply to identification parades in Victoria: • No person is obliged, or can be compelled, to participate in an identification parade or ‘line-up’. However, police are not required to tell a person that they do not have to participate. • An identification parade must be held if the suspect requests one and it is practical to do so. • The other people in the identification parade must be of similar age, height, general appearance and class of life as the person who is standing for identification. • A person who is being put up for identification must be told that: – they can choose where they wish to stand among those in the parade, can change places, and can object to any person selected or to the arrangements made; – they can have a friend, lawyer or relative present, so long as that friend, lawyer or relative arrives within a reasonable time and agrees not to do or say anything to interfere with the parade; and – the witnesses will not receive details of the person’s identity. • The friend or lawyer who attends the parade must play the role of passive observer. This person can observe and listen but must not speak to anyone. • Where it is practicable, and if all the participants consent, the parade should be photographed before it begins. Identification parades for Commonwealth offences The Crimes Act (Cth) (s 3ZM) sets out the situations where identification parades can be conducted. The Crimes Act (Cth) also sets out detailed procedures for the conduct of identification parades. Section 3ZN of the Crimes Act (Cth) (s 3ZN) sets out the situations where identification parades of suspects under 18 years can be conducted. An identification parade can be conducted in relation to any Commonwealth offence, provided the suspect agrees. If the suspect requests that a parade be conducted, then such a parade must be conducted if the circumstances make it reasonable to do so. Before any parade can take place, the suspect must be informed that they can refuse to take part but that to do so without a reasonable excuse would mean that evidence of that refusal, and of any identification of the suspect by a witness using other means such as photographs, could be given in any court proceedings. Such evidence would be likely to be very prejudicial to the suspect. The procedures for conduct of such identification parades are similar to those that apply for Victorian offences. The procedures also allow for: • the parade to take place so that the witness can view the parade without being seen; and • a witness to ask a person in the parade to speak, move or adopt a specified posture. The parade must be video recorded if practicable and, if not, photographed in colour. Lawyers at identification parades While lawyers are generally not present at identification parades, they may attend so long as they agree to meet certain conditions to the effect that they do not interfere in any way. However, in the event that some later allegation is made against the conduct of the parade, the suspect’s lawyer will then face the difficult possibility of becoming a witness against the client. Suspects should make a careful note of anything to do with the parade as soon as possible afterwards. They should particularly take details of the various persons placed with them. Suspects who enter parades and are not identified can rely heavily upon this fact to assert their innocence in court. If they are identified, they will not be prevented from generally