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Photographs

Information about when police can require a person to be photographed.

Police can generally take a person's photo at common law without that person's consent, however the High Court (in R v Ireland) has made a distinction between photographs taken for the purpose of identifying a suspect and for another purpose.

Victoria

The law is not clear about when police can take a suspect's photograph for the purpose of identification, although the High Court suggested that this could be done in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 (3 July 1970)(opens in a new window).

Kyle McDonald suggests that it could be argued that taking photos falls within the scope of forensic procedures under the Crimes Act 1958 (Vic). It is highly likely that a person's image will be captured on video as many interviews are now routinely video recorded.

If a photograph is taken of a suspect, it can be used for the purposes of identification by any witnesses. It is common for police to use images of a suspect for identification by showing witnesses a photo book. This is usually done where no suspect is available.

The police criminal investigation unit have books of photos available for viewing. They also have a database of distinguishing characteristics like tattoos, scars and deformities.

See [1.1.908] in Criminal Investigation and Procedure and Victoria Police Manual—Identifying offenders(opens in a new window).

See R v Ireland [1970] HCA 21; (1970) 126 CLR 321 (3 July 1970)(opens in a new window).

Prisoners

All prisoners must be photographed as soon as possible after they are received into prison. Police can also photograph a person who is placed in a police goal. Photos can be taken at any time while the person is in prison for prison records and for identification.

Photos can also be taken when an offender attends a Community Correction Centre.

See s. 28—Corrections Act 1986 (Vic)(opens in a new window).

Commonwealth

At Commonwealth law photos cannot be shown to a witness unless that person has refused to participate in an identity parade, or it holding an ID parade would be unreasonable. Police may also allow a witness to view a photograph rather than appear in an ID parade if their appearance has changed radically since the offence happened.

When police are showing a witness a photobook of potential suspects, the witness must be told that the suspect may not be included in the book of photos. If there is more than one suspect, then a separate identification process must be undertaken for each suspect.

The photograph that is used for identification must be taken of the suspect after they are arrested.

How photos are to be shown to a witness

If police intend to show photos of the suspect to a witness for the purpose of identification they must:

  • show the witness at least 9 photos of different people who resemble the suspect and do not have visible features (such as tattoos) that are different to those of the suspect
  • not show photos that indicate that the person is in police custody
  • not make any suggestion to the witness that one image might be one of the suspect
  • if possible, the photo must have been taken after the offence is alleged to have been committed
  • tell the witness that the suspect may not be among the images shown
  • keep a record of each photo shown to the witness
  • make this record available to the suspect or their legal representative
  • give the suspect or their legal representative the opportunity to see the photos shown to the witness

See ss. 3ZO, 3ZP—Crimes Act 1914 (Cth)(opens in a new window).

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 464(2)—defines a forensic procedure
  • s. 464R—forensic procedures on an adult

See Crimes Act 1958 (Vic)(opens in a new window).

Crimes Act 1914 (Cth)

  • s. 3ZO—identification by photographs
  • s. 3ZP—identification procedure if there is more than one suspect

See Crimes Act 1914 (Cth)(opens in a new window).

Corrections Act 1986 (Vic)

  • s. 28—photographs and fingerprints

See Corrections Act 1986 (Vic)(opens in a new window).

Case

R v Ireland (1970) 126 CLR 321

In this case a person suspected of having committed a murder was told by police that he had to have a photograph taken of his hand. The resulting photos showed scratches and marks on his hand that supported evidence that the person had been murdered with a knife.

Held: Barwick CJ made a distinction between the use of photos for identification of a suspect and those forcibly taken for another purpose. He said that a police officer has not right to force a person to submit to being photographed for any purpose other than for identification and that the photograph must be excluded from evidence.

See R v Ireland [1970] HCA 21; (1970) 126 CLR 321 (3 July 1970)(opens in a new window).

Reference

Victorian Police Manual

See Victoria Police Manual—Identifying offenders(opens in a new window).

Criminal Investigation and Procedure

Kyle McDonald is the author of this Westlaw resource, which has information about the powers and responsibilities of police when they are taking photographs.

  • Photographs [1.1.908] (Victorian)
  • Photographs [1.1.1005] (Commonwealth)

Note: This information is only available to staff at Victoria Legal Aid.

See Visual, aural and other forms of sensory identification [1A.5.205].

Updated