Identification

Question 1

When do the rules in relation to ‘Identification Evidence’ apply?

Answer 1

Part 3.9 - Section 113 - This part only applies in a criminal proceeding.

Question 2

How is ‘Identification Evidence’ regarded?

Answer 2

Alexander v the Queen - “Identification evidence is notoriously uncertain. It depends upon so many variables…”

Question 3

How is ‘Identification Evidence’ defined?

Answer 3

Dictionary - The assertion that the defendant was or resembles a person present or near a place where the offence being prosecuted was committed at or about the time it was committed and the assertion is based wholly or partly on what the asserted perceived at that place and time - or is a report of that assertion.

Question 4

What is the starting point in relation to ‘Identification Evidence’?

Answer 4

The starting point is: Is it Identification Evidence? If it is not based on what a person perceived, as per the definition, then it is not Identification Evidence and the rules do not apply (e.g. CCTV).

Question 5

Is evidence of a description ‘Identification Evidence’?

Answer 5

R v Taufua - A description is not identification evidence unless it goes a step further and asserts a resemblance between the person seen and the defendant.

Question 6

How is ‘Visual Identification’ defined?

Answer 6

Section 114 - (1) Identification evidence relating to an identification based wholly or partly on what a person saw but not including picture identification evidence.

Question 7

What is required for ‘Visual Identification’ evidence to be admissible?

Answer 7

Section 114 - (2) When adduced by a prosecutor, ‘visual identification’ evidence is not admissible unless: (a) police used an I.D. Parade, or, (b) it would not have been reasonable to hold an I.D. Parade, or, (c) defendant refused to participate in an I.D. Parade, and, there was no influence on the witness to identify the defendant.
*E.g. Pointing out a suspect at a scene does not require an I.D. Parade.

Question 8

Can police inform a witness that the suspect is a person included in the I.D. Parade?

Answer 8

R v To - Evidence of visual identification is not to be excluded if the witness is informed that the suspect is a person included in the I.D. Parade.

Question 9

Define: Reasonableness

Answer 9

DPP v Donald - Not necessary to hold an I.D. parade if the defendant has been arrested due to an identification already made by the witness. Conducting an I.D. Parade would be contaminated if it were to be conducted in these circumstances and Section 114(2)(b) would apply.

Question 10

How is ‘Picture Identification’ defined?

Answer 10

Section 115 - (1) Identification evidence relating to an identification based wholly or partly by a person who made the identification using pictures kept for the use of police (e.g. photographs).
*All other pictures captured under Section 114.

Question 11

Does Section 115 - ‘Picture Identification’ - apply to security photographs?

Answer 11

R v Hennessy - Security photographs are not picture identification evidence as they do not form an assertion “by a person” and are not for the purpose of comparing the defendant to anyone.

Question 12

When is ‘Picture Identification’ evidence not admissible?

Answer 12

Section 115 - (2) The pictures suggest that they are pictures of persons in police custody. (3) & (4) The defendant was in custody when the pictures were examined and the picture of the defendant was made before he or she was taken police custody. (5) The defendant was in custody when the pictures were examined.

Question 13

When are pictures of persons in police custody admissible as ‘picture identification’ evidence despite Section 115(2)?

Answer 13

Section 115 - (8) Picture identification can be adduced by the prosecution to contradict or qualify picture identification adduced by the defence.
*E.g. If the defence adduce a picture to show that the defendant did not have a beard, the prosecution can adduce a picture to show, in contradiction, that he did.

Question 14

When is ‘picture identification’ evidence admissible despite (3) & (4) - the defendant was in custody when the pictures were examined and the picture of the defendant was made before he or she was taken police custody?

Answer 14

(a) the defendant’s appearance had changed significantly from when the offence was committed, or, (b) it was not reasonably practicable to make a picture of the defendant after he or she was taken into custody, or, (c) the evidence contradicts or qualifies picture identification evidence adduced by the defence (s115(8)).

Question 15

When is ‘picture identification’ evidence admissible despite (5) - the defendant was in custody when the pictures were examined?

Answer 15

(a) the defendant refused to take part in an identification parade, or, (b) the defendant’s appearance had changed significantly from when the offence was committed, or, (c) it would not have been reasonable to have held an identification parade that included the defendant, or, (d) the evidence contradicts or qualifies picture identification evidence adduced by the defence (115(8)).

Question 16

What is the value of ‘picture identification’ evidence offered by policing identifying the defendant from security footage?

Answer 16

Smith v the Queen - Evidence of police identifying a defendant from security footage is not relevant as a jury could make its own comparison. A jury will likely have spent more time with a defendant during a trial than police did during their interactions with that person.

Question 17

Is ‘picture identification’ evidence from social media admissible?

Answer 17

R v Kearney - Identification from a picture on social media is relevant and admissible. The displacement effect applies but this should not exclude the evidence as spontaneous recognition adds to probative value and can outweigh the danger of unfair prejudice (misuse).

Question 18

What directions should the court give the jury on the admission of identification evidence?

Answer 18

Section 116 - Specific warning - If identification evidence is admitted, the judge should inform the jury: (a) that there is a special need for caution before accepting the evidence, and, (b) of the reasons for that need for caution, both generally and in the circumstances. Also - Section 165 - General warning - On the request of a party, warning that evidence may be unreliable and reasons why.