Identification Evidence Flashcards
Identification evidence definition
Identification evidence means (a) an assertion by a person to the effect that an accused was, or resembles a person who was, present at or near a place where the offence was committed or an act connected to the offence was done, at or about the time when the offence was committed or the act was done, being an assertion that is based wholly or partly on one person saw, heard or otherwise perceived OR (b) a report, whether oral or in writing, of such an assertion.
Visual identification evidence
Visual ID evidence is evidence relating to an ID based wholly or partly on what a person saw, but does not include picture ID evidence (114).
Determining whether it would have been reasonable to hold a parade.
In considering whether it would have been reasonable to have held a parade, the court must consider:
- kind and gravity of offence
- importance of the evidence
- practicality of holding ID parade (having regard to whether A failed to cooperate and whether the ID was made at or about the time of the offence).
- appropriateness of parade, having regard to relationship between A and person who made the ID.
The court must not consider the availability of pictures or photos that could be used in ID.
Is it ever presumed that it would not have been reasonable to hold an ID parade?
Yes. It is presumed that it would not have been reasonable to hold a parade if it would be unfair to A or A refused to take part without a lawyer or other person present and it was not reasonably practicable for that person to be present.
Picture ID evidence definition
Picture ID evidence is evidence relating to an ID made wholly or partly by a person examining pictures kept for use by police offices.
Picture ID evidence adduced by the prosecution is not admissible if:
Prejudice: The pictures suggest they are pictures of a person in custody, unless the evidence contradicts or qualifies picture ID evidence adduced by the defence.
Currency: The accused was in custody (not prison) when the pictures were examined and the picture was taken before the accused was taken into custody (unless the accused appearance had changed significantly between the alleged offence and being in custody, it was not reasonably practicable to make a picture of the accused after taking into custody, of the evidence contradicts or qualifies picture ID evidence adduced by the defence).
- Failure to perform ID parade: the accused was in custody (not prison) of the police force investigating the offence when pictures examined, unless:
- A refused to take part in an ID parade; or
- A’s appearance had changed significantly between the time of the offence and the time when taken into custody; or
- It would not have been reasonable to hold an ID parade; or
- the evidence contradicts or qualifies picture ID evidence adduced by the defence. 
Directions if picture ID evidence goes in?
If picture ID evidence is admitted, the judge must on request of the accused inform the jury that the picture was made after the accused taken into custody (if applicable) OR warn the jury that they must not assume the accused has a criminal record or has previously been charged.
Meaning of ID evidence under the JDA
Definition in s 35 JDA is broader than under EA.
ID evidence means an assertion or report of an assertion to the effect that:
- The maker recognises or does not recognise a person or object that they saw, heard or perceived on the relevant occasion; or
- The general appearance or characteristics of a person or object a similar, or are not similar, to the general appearance or characteristics of the person or object that they saw, heard or perceived on the relevant occasion.
Request for direction on ID evidence
A party may request under section 12 a direction on ID evidence. The request must specify the significant matters that may make the evidence unreliable. Unless there are good reasons for not doing so, the trial judge must then give a direction.
Content of direction on ID evidence
The trial judge must:
(a) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it;
(b) inform the jury of the matters that the trial judge considers may make the evidence unreliable;
(c) inform the jury that a witness my honestly believe that their evidence is accurate when the witness is in fact mistaken and the mistaken evidence of a witness may be convincing;
(d) if relevant, inform the jury that a number of witnesses may all be mistaken;
(e) if relevant, inform the jury that mistaken ID evidence has resulted in innocent people being convicted.
Visual ID evidence adduced by the prosecution is not admissible unless…
Visual ID evidence adduced by the prosecutor is not admissible unless the identification was made without the person who made it being intentionally influenced to identify the accused and:
- An ID parade including A was held before ID made; or
- It would not have been reasonable to have held such a parade; or
- A refused to take part in a parade.
(114)
