101MIdentification by means of photographs

101M  Identification by means of photographs  (1) Where a suspect in relation to a relevant act in relation to a service offence is in custody, an investigating officer investigating the service offence shall not show a photograph of a person, or a series of photographs of persons, to a witness to the relevant act for the purpose of ascertaining, or obtaining evidence of, the identity of a relevant person in relation to the relevant act unless:  (a) the suspect has refused to take part in an identification parade; or  (b) the holding of an identification parade would be:  (i) unfair to the suspect; or  (ii) impracticable in all the circumstances.  (2) Where an investigating officer investigating a service offence shows a photograph of a person, or a series of photographs of persons, to a witness to a relevant act in relation to the service offence for the purpose of ascertaining, or obtaining evidence of, the identity of a relevant person in relation to the relevant act, the investigating officer:  (a) shall not, in doing so, act unfairly towards a suspect in relation to the relevant act or suggest to the witness that a particular photograph is the photograph of such a suspect or of a person who is being sought by the police or by the Defence Force in respect of a civil court offence, an overseas offence or a service offence;  (b) shall keep, or cause to be kept, a record identifying each photograph or series of photographs that is shown to the witness; and  (c) shall, upon application by a suspect in relation to the relevant act:  (i) provide the suspect with a copy of the record so kept; and  (ii) afford the suspect a reasonable opportunity to inspect each photograph or series of photographs shown to the witness.  (3) Where a suspect in relation to a relevant act in relation to a service offence is in custody, an investigating officer investigating the service offence shall not show a picture of the kind known as an Identikit picture or a picture of a similar kind, or a series of pictures of the kind known as an Identikit picture or a series of pictures of a similar kind, to a witness to the relevant act for the purpose of assisting the witness to describe the features of a relevant person in relation to the relevant act.  (4) Nothing in subsection (3) precludes an investigating officer from obtaining the assistance of a witness to a relevant act in relation to a service offence in the preparation of a picture of the kind known as an Identikit picture or a picture of a similar kind.  (5) Where, after an investigating officer investigating a service offence has shown a witness to a relevant act in relation to the service offence a picture or series of pictures for the purpose of assisting the witness to describe the features of a relevant person in relation to the relevant act, a suspect in relation to the relevant act comes into custody, the investigating officer in charge of investigating the service offence shall, unless it is impracticable to do so, cause the witness to attend an identification parade in relation to the suspect.  (6) Where, after a witness to a relevant act in relation to a service offence has been shown a picture or series of pictures for the purpose of assisting the witness to describe the features of a relevant person in relation to the relevant act, a person is charged with the service offence, the investigating officer in charge of investigating the service offence shall, upon application by the person, provide the person with particulars of the picture or series of pictures that was shown to the witness and the comments (if any) of the witness concerning the picture or series of pictures.  (7) Where a suspect in relation to a relevant act in relation to a service offence is in custody and an investigating officer investigating the service offence believes on reasonable grounds that a person who is not in custody is a relevant person in relation to the relevant act:  (a) subsection (1) shall not be taken to prevent an investigating officer from showing a photograph of a person, or a series of photographs of persons, to a witness to the relevant act for the purpose of ascertaining, or obtaining evidence of, the identity of the other person; and  (b) subsection (3) shall not be taken to prevent an investigating officer from showing a picture of the kind known as an Identikit picture or a picture of a similar kind, or a series of pictures of the kind known as an Identikit picture or a series of pictures of a similar kind, to a witness to the relevant act for the purpose of assisting the witness to describe the features of a relevant person in relation to the relevant act (other than the suspect).