Interviews, Examinations and Line-ups
The Forensic Procedures Act 2000 authorises medical examinations of persons suspected of, or charged with offences in the detailed circumstances which it specifies. No forensic procedure on a person under ten years of age is permitted (s4).
The procedures authorised under the Act are intimate procedures where a suspect or person charged is 15 years or older, where that person has given informed consent, or upon the order of a magistrate; non-intimate procedures on a charged person if any police officer so orders if the person is in custody; and if the person is not in custody on the order of an officer of or above the rank of Inspector; and where a suspect or person charged is under the age of 15 years if that person and his or her parent has given informed consent or on the order of a magistrate.
Non-intimate procedures may be carried out on a person serving a sentence, a parolee and a person subject to a restriction order under the Criminal Justice (Mental Impairment) Act 1999.
Persons may volunteer submission to forensic procedures if they give informed consent and if under the age of 15 years both they and their parent give such consent (s8).
Procedures have to be carried out in circumstances affording reasonable privacy and in a manner consistent with appropriate medical or other relevant professional standards. The procedures can be carried out with reasonable force to enable the procedure and to prevent loss, destruction or contamination of sample. The most intimate procedures should be carried out by a person of the same sex as the person undergoing the procedure.
Records of Interviews
Written interviews are rarely used when audio-visual equipment is now available. If written interviews are now used, it may be suggested in court that the police did not want the interview recorded for various reasons.
If a written record of the interview is required, this may be done in ‘question and answer’ form, handwritten or typed. In either case, the person will be asked to sign it but does not have to do so.
In law, when a person reads and signs a document or agrees that it is correct, they are adopting everything in the document. There is no objection to a person reading and signing a record of interview that contains no answers other than refusals to answer, unless of course the police need a specimen of handwriting to be used in court.
There can also be no objection to a person reading and signing a statement or a record of interview where the person knows and understands what the document contains and does not mind the words in the document being recorded as theirs.
In all cases, however, where words of a person are recorded by the police, a copy should be requested and supplied free of charge. The person concerned needs a copy so that the extent of any admissions can be seen before going to court. A written signature is usually requested as a receipt. If the person does not want to sign for the document, it is better to do without the copy. It can in any case be obtained by the person or their lawyer later on by requesting it in writing.
Because it is expected that interviews of suspects by police will now take place on video, what is said to the police and what is contained on any written transcript can now be checked by the court. However in cases being prosecuted by other branches of government it is possible that video facilities may not be available. In such cases the record of interview may be in dispute. A person should not sign a record of interview if they have not read it, if they do not understand part or all of it or if they disagree with all or any of it.
Unsigned records of interview can still be used as evidence in court. Section 81 of the Evidence Act 2001 can be used to admit direct oral evidence from a police officer that a suspect confessed to being guilty. The police officer may put this representation in a document (i.e. the record of interview) to establish the fact the suspect confessed to them, provided the police officer had personal knowledge of matters dealt with by the representation, namely the confession of guilt.
However, where the accused denies the truth of the document, the magistrate or judge will sometimes refuse to admit it to evidence. For example, evidence that a legal adviser was refused access to the accused may cast doubt on the truth of the record of interview so that it will not be admitted.
There are certain requirements regarding unsigned records of interview:
- An accused must have acknowledged or adopted the document (by agreeing that it is correct;
- A copy of the document must also be shown to the accused as soon as practicable (as failure to do so may give rise to a suspicion that it has been altered);
- A judge still has a discretion to exclude it on grounds such as unfairness, prejudice, unlawfully obtained, undue weight, etc.
- Further, unless the reliability of the unsigned and disputed record outweighs its prejudicial effect, a proper exercise of the discretion requires that it should not be admissible in evidence. This is so even if the accused has acknowledged it to be correct in front of an independent person.
- As a matter of practice, a judge should warn a jury of the dangers of relying on disputed confessional evidence obtained by police where it is not independently corroborated. The audio-visual recording of interviews provides reliable corroboration of a confessional statement and therefore no such warning is necessary where this procedure has been adopted.
Fingerprints, Photographs and Line-ups
After a person has been properly arrested and charged, police have the power to photograph and fingerprint a person in the case of all but a few minor offences. Reasonable force may be used to do this. Such evidence can be used to identify a person at the time and later on in court. These records should be destroyed within seven days if the person has no previous relevant record and no conviction results from the charge. Persons under fifteen cannot be photographed and finger-printed unless they have consented (s8, Forensic Procedure Act 2000 (Tas)).
It is unclear whether a person can be forced to take part in an identification parade or ‘line-up. However, unwilling suspects can easily abort the proceedings by drawing attention to themselves. Police Standing Orders lay down the procedure for line-ups. A suspect’s rights are to choose any position and to complain about any aspect of the procedure.
The sergeant in charge of a line-up is meant to be independent of the officers investigating the case. A complaint to that sergeant should be made, and recorded, where those on the line-up are not of similar age, height, general appearance or class as the suspected person. Participants in line-ups are advised to make written notes of all aspects of the process as soon as possible afterwards.
The failure of a witness to identify a suspect in a line-up can be relied upon in asserting innocence to a court. If a suspect is identified, a challenge to the conduct of the line-up can still be made. This will be easier to do if a complaint was made and recorded at the time.
The High Court has taken the view that an identification parade, rather than photographic identification, is a much fairer procedure for the accused. This is because the identification is in the presence of the suspect who can observe for themselves if any unfair procedures or techniques have been adopted.
Identification parades tend not to highlight the position of the accused as a ‘suspect’ if the people in the parade are of similar age, sex and height and so on. Whereas, a suspect is not present when an identification is made from photographs which are produced from police records and the existence of a photograph in police records may suggest a propensity to commit offences of the kind in question.
A warning is to be given by a trial judge to a jury in relation to identification evidence in every case where such evidence represents any significant part of the proof of guilt of an offence.