Identification Evidence Flashcards
What is identification evidence?
Evidence Act dictionary:
An assertion by a person that a defendant was, or resembled a person who was present at or near a place where:
the offence for which the defendant is being prosecuted was done or at or about the time at which the offence was committed or 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 (whether oral or in writing) of the assertion.
Is a police officer reviewing cctv or a nemesis and identifying a suspect evidence?
No because it doesn’t meet the definition under the act. Not based on what they saw heard or perceived as they were not present.
Is description evidence identification evidence.
No. Walford v DPP: evidence involving a physical description or the namr by which he was addressed does not involve an assertion to the effect that the defendant was or resembles a person.
R v taufua: description is not identification evidence unless it goes further and asserts a resemblance between person seen and defendant.
What proceedings do identification evidence relate to?
Section 113 evidence act: this part only applies to criminal proceedings (therefore not avos, forensic procedures etc)
What is picture identification evidence?
S115(1) evidence act: picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
Do pictures include photographs?
Yes s115(10) evidencr act: pictures include photographs.
R v Hennessey security photographs are not picture identification evidence.
What is visual identification evidence?
S114(1) evidence act: visual identification evidence is Identification evidencd relating to an identification based wholly or partly on what the person saw but not including picuture identification evidence.
Is visual identification evidence admissible?
S114(2) evidence act: visual identification evidence, adduced by the prosecutor is not admissible unless:
2A) Police held an ID parade or
2b it would not have been reasonable to hold one
C) defendant refused to participate in an ID parade. And
2. No intentional influence on witness to identify defendant.
What is the relevance of R v To?
This case held that a police officer informing 2 witnesses that there would be suspects in the paradr did not constitute an influence on the witness to identify the defendant.
What constitutes reasonableness for holding an identification parade?
S114(3) without limiting the matters that may be taken into account by the court in determinibg whether it was reasonable to hold an identification parade the court is to take into account:
- the kind of offence and the gravity of the offence concerned and
The importance of the evidence and
The practicality of holding an identification parade having regard among other things:
If the defendsnt failed to cooperate in the conduct of the paradr to the manner extent and failure anf
In any csse whether the identificstion was made at or sbour the time of the commission of the offence and
The appropriatebess of holding an identification parade having regard, among other things, to the relationship if any between the defendant and the person who made the identification.
Other considerations for whether it was reasonable to hold a parade:
S115(6) evidence act cany take into account availability of photos
S114(4) presumed unreasobale to hold ID parade if unfair to the defendant
S144(5) unable to get requested friend lawyer of his or her choice there for parade
What is the relevance of DPP v Donald & Anor
Initislly magistrate held id madr by victim after seeing the offended 16 days after the offencd inadmissible as no ID parade held. On appeal decision was that it eas not reasonable to hold an identification parade prior to the time the ID was made as ID parade at time of arresr would hsve been contaminated.
What is the 3 criteria for picture evidence to be admissible?
- S115(2) evidence act: pictures cant suggest the person is in custody.
- S115(3) evidence act: pictures used must be of the defendant taken after the arrest
- S115(4) evidence act: picture ID evidence only admissible if identification parade refused, appearance changed or unreasonable to have held an identification parade.
What does in custody mean?
R v Mc Kellar: in the custody of police officer should be given it’s normal meaning. In Custody must mean under physical restraint.
How does sections 115(2) and (8) evidence act operate together?
If defendant adduces photographs of himself then prosecutors can rebut it by producing photographs ehich dont comply with section 115(2).
Prosecutors cant adduce photographs of a person which suggests someone is in custody. However s 115(8) provides that this rule (115(2) does not renddr inadmissible picture identification evidence adducdd by the prosecutor that qualifies or contradicts evidence adduced by the defendant
What obligations does a judge hace to inform the jury in relation to identification evidence?
S116 evidence act: if identification evidence has been admitted the judge is to inform the jury:
A. That there is a special need for caution before acceoting identification evidence and
B. Of the reasons for that need for caution both generally and in the circumstances of the case
