Identification evidence Flashcards
Identification only applies to … proceedings
Criminal
Identification evidence only applies to evidence adduced by …
Prosecution
What is identification evidence?
Identification evidence means evidence that is an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was present at or near a place where:
(i) The offence for which the accused is being prosecuted was committed; or
(ii) An act connected to that offence was done –
At or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time.
Or a report of such an assertion.
What does identification evidence require?
Assertion of sameness
What does identification evidence include?
- Visual and other identification
- Both position and resembles evidence
- Both in and out of court assertions
Covers situations whereby the witness - Does not see the defendant (as distinct from the perpetrator) directly – for instance by relying on a picture or recording
What is NOT included in identification evidence?
- Non-human evidence (eg machine based identification)
- Persons other than the defendant and things
- Exculpatory evidence
Is visual identification evidence admissible?
- s114
Visual identification evidence adduced by prosecution is not admissible unless:
o An identification parade that included the accused was held before the identification was made; or
o It would not have been reasonable to have held such a parade; or
o The accused refused to take part in such a parade –
And the identification was made without the person who made it having been intentionally influenced to identify the accused.
Factors that court should consider when determining whether hl
- Take into account:
o The kind of offence, and the gravity of the offence; and
o The importance of the evidence;
o The practicality of holding an identification parade having regard to:
If the accused failed to cooperate in the conduct of the parade – to the manner and extent of, and the reason for, the failure; and
In any case – to whether the identification was made at or about the time of the commission of the offence; and
o The appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the accused and the person who made the identification. - Cannot take into account the availability of pictures of photographs that could be used in making identifications.
When is picture evidence NOT admissible?
No
o Not admissible if, when the pictures were examined, the accused was in police custody and the picture was made before the accused was taken into police custody, however,
o It is admissible if the appearance of the accused changed significantly between the time the offence was committed and the time the accused was taken into custody, or it was not reasonably practicable to make a picture of the accused after he or she was taken into custody.
What jury direction is applicable to identification evidence?
- Per s36 JDA, prosecution or defence counsel may request under s12 a direction be given pursuant to s12
o In the request must specify the significant matters that may make the evidence unreliable.
* In giving a direction, judge must:
o Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; and
o Inform the jury of the significant matters that the trial judge considers may make the evidence unreliable; and
o Inform the jury that –
A witness may honestly believe that his or her evidence is accurate when in fact the witness is mistaken; and
The mistaken evidence of a witness may be convincing;
If relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted.
When identification evidence is classified as opinion evidence?
- Identification evidence may be either evidence of fact or evidence of opinion, depending on the circumstances:
o Where there is little risk of misidentification (eg where the witness identifies a person, clearly depicted in a studio photograph, as his/her spouse), identification evidence will normally be regarded as a statement of fact;
o Where a real risk of misidentification is present (eg where the identification is made from a photograph which does not clearly depict the person who is its subject), it will usually be appropriate to classify identification evidence as opinion evidence.
Explain the exception to opinion rule - evidence adduced for a non-opinion purpose
S77 - IF the evidence of an opinion is not adduced to prove the existence of a fact about the existence of which the opinion was expressed, but adduced for some other purpose, the opinion exclusionary rule does not apply.
Note: The use of this evidence may be limited under s136.
Explain the exception to opinion rule - lay opinions
hearsay rule doesn’t apply to evidence if the opinion is:
Based on what the person saw, heard or otherwise perceived about a matter or event; and
o Evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
Explain the exception to opinion rule - ATSI laws
Opinion rule does not apply to evidence of an ATSI person about the existence or non-existence, or the content, of the traditional laws and customs of the group.
Explain the exception to opinion rule - Expert opinion
Opinion rule does not apply to the evidence of a person who has specialised knowledge based on the person’s training, study or experience, where the evidence of an opinion of that person is wholly or substantially based on that knowledge.
- Step 1: Does the person have specialised knowledge based on their training, study or experience?
- Step 2: Is the opinion based wholly or substantially on that knowledge?
