Identification Evidence

Question 1

Explain how “Evidence of Identity” takes form in New Zealand?
Clue: 2x notes provided

Answer 1

• Evidence of identity usually takes the form of a witness stating that a person is the same as someone he or she saw on a previous occasion.
• In New Zealand, both visual and voice identification evidence has been admitted in criminal cases.

Question 2

What is the definition of “Visual Identification Evidence” under the Act?
Clue: 2x provided

Answer 2

• An assertion by a person, based wholly or partly on what that person saw, to the effect that a Defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done

OR

• An account (whether oral or in writing) of an assertion of the kind described above.

Question 3

What are the provisions of Section 45 (Admissibility of visual identification evidence) of the Act regarding “identification evidence”?

Answer 3

The provisions of Section 45 apply only to identifications of persons alleged to have committed an offence, and so other forms of visual identification evidence will be governed by the general provisions of Sections 7 (Fundamental principle that relevant evidence admissible) and 8 (General exclusion [probative value]).

Question 4

The definition in Section 4 of the Act does not cover what?

Answer 4

• Resemblance evidence (evidence that a person shares features or attributes with the Defendant) rather than direct identification.

Question 5

Provide caselaw example of “resemblance evidence”?

Answer 5

• R v Turaki [2009] NZCA 310 at [58].
• It covers RECOGNITION EVIDENCE.
• It covers some cases of OBSERVATION EVIDENCE, where the Defendant does not deny being at the scene but does deny acting in a particular way.

Question 6

What does caselaw: R v Turaki [2009] NZCA 310 at [58] also cover?
Clue: 2x provided

Answer 6

• It covers RECOGNITION EVIDENCE.
• It covers some cases of OBSERVATION EVIDENCE, where the Defendant does not deny being at the scene but does deny acting in a particular way.

Question 7

Provide a breakdown of Section 45: Admissibility of visual identification evidence?

Answer 7

• Sub section (1): Balance of probabilities
• Sub section (2): Beyond reasonable doubt
• Sub section (3): For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence - (a) - (g)
• Sub section (4): The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure - (a) - (f)

Question 8

What does Section 45(3) of the Act cover?

Answer 8

Under the “Balance of probabilities”, Section 45(3) [sub-sections (a) to (g)] covers the requirements for a FORMAL PROCEDURE.

Question 9

What part of the Identification procedure MUST be conducted to prove “beyond reasonable doubt”?

Answer 9

• The identification procedure must be conducted by “officers of enforcement agency”, which includes some agencies other than the Police.

Question 10

What provision applies only to Visual Identification Evidence?

Answer 10

• Beyond reasonable doubt:

. The provision applies only to visual identification evidence of a “person alleged to have committed an offence”.

Question 11

Sections 6, 7 and 8 of the Act governs what?

Answer 11

• Identifications of other people will fall to be governed by the general principles in Section 6, 7 and 8.

Question 12

Explain “dock identification”?

Answer 12

• The combined effect of section 45(2) and (3) is intended to prevent dock identification - where the witness identifies the Defendant in the Courtroom for the first time.

Question 13

Explain Section 45(3) of the Act on “focus on formal procedure”?

Answer 13

• The focus under the Act is on whether or not a formal procedure was undertaken. This means that photographic and video identification may be used where the procedure adheres to the requirements under S. 45(3).

Question 14

Focus on formal procedure: Explain “burden of proof” in relation to Section 45(1)?

Answer 14

• Section 45 introduces a BURDEN OF PROOF on the Defendant in S. 45(1), should he or she wish to challenge the reliability of visual identification evidence gained from a formal procedure.
• The standard required is on the BALANCE OF PROBABILITIES.

Question 15

What provisions does Section 45(2) provide on ‘focus on formal procedure’?

Answer 15

• Section 45(2) provides that, where there has been no formal procedure followed (and there was no good reason for not doing so), visual identification evidence will be inadmissible unless the Prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

Question 16

Explain Section 45 of the Act in relation to “focus on reliability”?
Clue: 2x provided

Answer 16

• The focus on reliability of eyewitness evidence in S. 45 is a reflection of the inherent potential for unreliability of both visual and voice identification:
  . Our memories are prone to incompleteness, distortion, and forgetfulness.
• As identification evidence is inherently unreliable, care must be taken to elicit the most reliable evidence possible by means of fair and transparent procedures.

Question 17

As admissibility may stand or fall on the issue of whether the evidence was gained through a formal identification procedure, it is important to know what constitutes a formal procedure.
Clue: 7x provided

Answer 17

• Formal procedure requirements:
  . Section 45(3) sets out the requirements, all of which need to be met before the presumption for admissibility under S. 45(1) is triggered.

. If one or more of the requirements are not met, admissibility will be governed under S. 45(2).

. In line with the overall aim of S. 45, the purpose of S. 45(3) is to ensure that visual identification evidence is as reliable as possible.

. Police Instructions contain more detailed provisions for identification parades (which are rarely used) than for photo montages (which are routinely conducted).

. The Police Instructions restate the key elements in S. 45(3) and in addition provide that any identification parade should be conducted by a staff member at the level of Sergeant or Senior Sergeant. The OC can be present, but MUST NOT take part in the proceedings.

. Seven people MUST be chosen who are of the same race, similar age, height, general appearance and social grouping as the suspect, and not Police members.

. Suspects should be advised that he or she is entitled to refuse to take part in the parade and have a solicitor present.

Question 18

“Good reasons” for not following a formal procedure:

Clue: 3x provided

Answer 18

• Section 45(4) outlines what circumstances constitute a good reason for not following a formal procedure. The list in S. 45(4) is NOT exhaustive.
• If the Prosecution wants to avoid the burden imposed by S. 45(2), it must try to establish a good reason for an informal procedure in any case where the requirements of S. 45(3) are not fully met.
• If the Prosecution can provide a good reason under S. 45(4), the identification evidence will be admissible under S. 45(1), and the onus will shift to the Defendant to prove that the identification is unreliable.

Question 19

Provide some of the “good reasons” involving some difficult issues.
Clue: 6x provided (a) - (f)

Answer 19

(a) Subsection (4)(a): Refusal to participate
(b) Subsection (4)(b): Singular in Appearance
(c) Subsection (4)(c): Change of Appearance
(d) Subsection (4)(d): No anticipation that identification would be an issue
(e) Subsection (4)(e): Identification made shortly after the offence
(f) Subsection (4)(f): Chance Meetings

Question 20

Explain (a) Subsection (4)(a): Refusal to participate

Answer 20

Where a photograph or video already exists of the person to be identified, and it represents a true likeness of that person, refusal to participate will usually not constitute a good reason under S. 45(4) because the existing photograph or video can be used in a formal procedure.

Question 21

Explain (b) Subsection (4)(b): Singular in Appearance

Answer 21

Section 45(4)(b) acknowledges that there will be cases where the person can be identified will be so singular in appearance that the requirement in S. 45(3)(b) cannot be complied with.

Question 22

Explain (c) Subsection (4)(c): Change of Appearance

Answer 22

Live procedures will not be used in the majority of cases, and therefore S. 45(4)(c) will only be relevant in those cases where there has been a delay between the offending and the arrest, when a photograph will be taken.

Question 23

Explain (d) Subsection (4)(d): No anticipation that identification would be an issue

Answer 23

Section 45(4)(d) provides that a formal procedure need not be held where no officer “could reasonably anticipate that identification would be an issue at the trial of the Defendant”.

Question 24

Under (d) Subsection (4)(d): No anticipation that identification would be an issue - explain ‘recognition?
Clue: caselaw

Answer 24

• Recognition
  . Recognition of the suspect by the eyewitness may make a formal procedure unnecessary.
• Caselaw: R v Edmonds [2009] NZCA 303

Question 25

Explain (e) Subsection (4)(e): Identification made shortly after the offence
Clue: 2 provided

Answer 25

• Section 45(4)(e) recognizes that identification made shortly after the occurrence of the offence may make a further, formal, procedure unnecessary.
• The provision in S. 45(4)(e) aims to avoid tainting of the evidence, and to allow the Police to take advantage of an identification made immediately after the event, when it is still fresh in the witness’s mind.

Question 26

Explain (f) Subsection (4)(f): Chance Meetings

Answer 26

Section 45(4)(f) deems a formal procedure to be unnecessary where the witness identifies the alleged Offender after a chance meeting.

Question 27

Explain Section 4 of the Act under the “Admissibility of voice identification evidence”?

Answer 27

Section 4, Evidence Act 2006 defines “voice identification evidence” as evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a Defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

Question 28

Explain Section 46 of the Act regarding “Admissibility of voice identification evidence”?

Answer 28

Section 46 of the Evidence Act 2006 governs the admission of voice identification evidence, and sets out a general rule of inadmissibility.

Question 29

Under Section 46, explain “burden of proof” regarding ‘Admissibility of voice identification evidence’?

Answer 29

The burden of proof imposed on the Prosecution under S. 46 is proof of reliability on the balance of probabilities. Therefore, the Prosecution only have to prove that the voice identification evidence is PROBABLY RELIABLE.

Question 30

Explain “Defendants statements when ‘improperly obtained’ evidence”?
Clue: 2 provided

Answer 30

• Evidence offered by the Prosecution of a statement made by a Defendant is not admissible against a co-Defendant.
• Evidence offered by the Prosecution of a statement made by a Defendant is NOT ADMISSIBLE against that Defendant if it is excluded under Sections 28, 29 or 30.

Question 31

Under Section 4 of the Act, what is a “statement”?

Answer 31

A “statement” is a spoken or written assertion of any matter, or non-verbal conduct that is intended as an assertion of any matter.

Question 32

What does Section 28 of the Act relate to?

Answer 32

The Reliability Rule.

Question 33

What does Section 29 of the Act relate to?

Answer 33

The Oppression Rule.

Question 34

What does Section 30 of the Act relate to?

Answer 34

The Improperly Obtained Evidence Rule.

Question 35

What does Section 28 of the Act relate to regarding “The Reliability Rule”?
Clue: What is Section 28 and ‘reliability’ defined

Answer 35

• Section 28: Exclusion of unreliable statements (Subsection (1) - (4))
• “Reliability” in Section 28 relates to the accuracy and soundness of the statement - the focus of the Courts appears to be on the circumstances and likely reliability, rather than an assessment of actual reliability.

Question 36

Explain the exception to ‘reliability rule’ under Section 28(2).

Answer 36

• Exception to reliability rule (under Section 28(3))
• Section 28(2) will not have the effect of excluding a Defendants statement in 2 circumstances:
  1) Where the Prosecution wishes to use the statement as evidence of the Defendants’ “physical, mental, or psychological condition … at the time the statement was made”.

2) Where the Prosecution offers the Defendants statement “only…as evidence of whether the statement was made”.

Question 37

Under Section 28(4) - explain ‘Assessment of Reliability’?

Answer 37

• Section 28(4) sets out a list of factors which must be taken into account by a Judge in deciding whether the Prosecution has shown on the balance of probabilities “that the circumstances in which the statement was made were not likely to have adversely affected its reliability”. The assessment is not limited to the factors listed in S. 28(4), but the listed factors must be taken into account insofar as they are “relevant to the case”.

Question 38

Explain Section 29: The Oppression Rule?

Clue: What is Section 29 and Oppression defined

Answer 38

• Section 29: Exclusion of statements influenced by oppression (Subsections (1) - (5))
• In this section, oppression means -
  (a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the Defendant or another person; or
  (b) a threat of conduct or treatment of that kind

Question 39

Under Section 29 of the Act, according to what caselaw was it described as “the most serious ground of objection”?

Answer 39

R v Hawea [2009] NZCA 127 at [31]:
“The oppression rule has been described by the Court of Appeal as the most serious ground of objection to the admissibility of a Defendants statement”.

Question 40

According to Section 29 of the Act, whose perspective is ‘Oppression’ judged by?

Answer 40

Oppression is to be judged from the perspective of the Defendant. The state of mind of the alleged oppressor is irrelevant in the sense that he or she could be unaware that their behaviour is oppressive.

Question 41

What does Section 30 9f the Act relate to?

Clue: 3x provided

Answer 41

• Improperly obtained evidence (Subsections (1) - (6))
• Only applies to evidence offered by the Prosecution.
• Section 30(1) contains no requirement that the Defendant can only apply for exclusion on the basis of a breach of his or her own right. The section applies whenever improperly obtained evidence is offered against the Defendant who asks for its exclusion.

Question 42

Under Section 30(5), what is the definition of “improperly obtained evidence”?

Answer 42

• Section 30(5) defines “improperly obtained evidence”:
  1. In consequence of a breach of any enactment or rule of law by a person to whom S. 3 of the New Zealand Bill of Rights Act 1990 applies;
  2. In consequence of a statement made by a Defendant that is or would be inadmissible if it were offered in evidence by the Prosecution; or
  3. Unfairly

Question 43

Under Section 30 of the Act, what responsibilities are required from Police investigators?
Clue: 5x provided

Answer 43

1. A member of the Police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the Person questioned to answer.
2. Whenever a member of the Police has sufficient evidence to charge a person with an offence or whenever a member of the Police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions.
3. Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination.
4. Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained.
5. Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video.

Question 44

What does Section 30(6) of the Act relate to?

Answer 44

• S. 30(6) provides that a breach of the Practice Note on Police questioning must be taken into account by the Judge, but this will not necessarily result in a finding of unfairness and inadmissibility.