This section looks at the power the police have to take photographs, what use they can make of them in court and what warnings the court must give in respect to photographic identification.
Police power to take your photograph
If you are in custody for an offence, a police officer may take all particulars that are necessary to identify you. If you are over 14 years of age, the particulars may include photographs. Your consent is not required.
This power only applies while you are in the custody of police. If you are not in custody it is likely that the police will have to apply for a forensic procedure order from a court allowing the police to photograph you. We have successfully defended a number of applications made by the police including a matter in the Supreme Court.
Persons under 14 years of age
The police do not have the power to take photographs to identify persons under the age of 14. However, a court may order the police to take the photograph of a child under the age of 14.
If a court does not make such an order, a police officer may apply to the Children’s Court or, if not possible to apply to the Children’s Court within 72 hours of taking the child into custody, to an authorised officer, for an order authorising them to do so.
The Children’s Court or authorised officer will consider the seriousness of the circumstances surrounding the offence, the best interests and wishes of the child, and any wishes expressed by the parent or guardian of the child.
A child cannot be held in custody purely for the purpose of such an application being made to the Children’s Court or authorised officer.
When is photographic evidence inadmissible?
The Evidence Act 1995 (NSW) allows for the exclusion of evidence of identification by pictures
The pictures are not admissible if:
- The pictures examined suggest that they are pictures of persons in police custody; or
- 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 the picture of the defendant that was examined was made before the defendant was taken into that police custody.
- 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.
Point 2 above does not apply if
- 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
- It was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody.
Directions to jury in District Court and Supreme Court trials
If identification evidence has been admitted, the judge is to inform the jury: that there is a special need for caution before accepting identification evidence; and of the reasons for that need for caution, both generally and in the circumstances of the case.
Identification evidence is unreliable evidence
Section 165 of the Evidence Act 1995 states that identification evidence is unreliable. If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.