Photographic Forensic Procedures

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 Powers to Photograph

Where a person is in custody for an offence, a police officer may take all particulars that are necessary to identify them. This can include photographs, provided the person is over 14 years of age.

This power only applies while a person is in the custody of police. If they are not in custody but the police would like to photograph them, the police can apply for a forensic procedure order from a 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) includes certain provisions allowing for the exclusion of evidence of identification by pictures

The pictures may be determined to be not admissible if:

1. The pictures examined suggest that they are pictures of persons in police custody; 
2. When the photographs are looked at for the purposes of identification:
   1. At the time they were looked at the defendant was in custody, but the picture of the defendant being looked at was taken before they were taken into custody (unless the defendant’s appearance had changed significantly or it was not reasonably practicable to take a picture of the defendant after they were taken into custody); or
   2. At the time they were looked at, the defendant was in custody for the purposes of investigating an offence, unless:

(a)  the defendant refused to take part in an identification parade;
(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.

Directions to jury in District Court and Supreme Court trials

If identification evidence has been admitted, the judge is to direct (tell) the jury certain things about the risks associated with identification evidence. This includes 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.

If you would like assistance regarding forensic procedures please contact us.