Identification evidence

Question 1

ID evidence - definition

Answer 1

ID evidence is evidence that contains an assertion that the A either “was” or “resembles” a person who was present at or near where alleged act was committed.

ID evidence is human evidence. Includes visual and other ID (aural or otherwise).

EXCLUDES non-human evidence i.e. machine-based ID (security cam footage; facial recognition; surveillance recordings etc)

CAREFUL: ‘ID evidence’ (as defined) does not include exculpatory ID evidence. This means it does not regulate eyewitness evidence that the A is NOT the perpetrator.

Question 2

Visual ID evidence - definition

Answer 2

Visual ID evidence is ID evidence based ‘wholly or partly on what a person SAW but does NOT include picture ID evidence’.

ID evidence = human evidence.

Question 3

113 Application of ID evidence provisions

Answer 3

ID evidence provisions (s113 - s116) apply only in criminal proceedings.

Question 4

114 – Exclusion of visual ID evidence

Answer 4

Visual ID evidence is not admissible unless:

• an ID parade was held; OR
• it would not have been REASONABLE to hold such a parade; OR
• the A refused to take part in such a parade, AND the ID was made without the maker having been intentionally influenced to identify the A.

S 114(4) creates a presumption that an ID parade would not have been reasonable if it would have been UNFAIR TO THE A to hold one. Example: not appropriate to hold an ID parade where a witness has seen a photograph of the suspect after the alleged offence.

S 114 applies to in-court ID evidence (R v Tahere). Thus, an ID parade is a necessary precondition to the admissibility of in-court ID evidence (unless an exception to s114 applies).

Question 5

115 Exclusion of picture ID evidence (evidence of ID made after exam of pictures kept by the police)

Answer 5

Picture ID evidence is evidence of an ID made wholly or partly by a person after examining pictures kept by the police (s115(1)).

Evidence of this kind is not admissible if the pictures examined suggest they are pictures of persons in custody (s115(2)).

Picture ID evidence adduced by the P is not admissible if, when the pictures were examined, the A was in police custody, unless:

• the A refused to take part in an ID parade; OR
• the appearance of the A had changed significantly between the time the offence was committed and the time when the A was taken into custody; OR
• it would not have been reasonable to hold an ID parade that included the A (s115(5)).