Identification Of Offenders Flashcards
Visual Identification evidence means evidence that is:
• 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.
(s4 Evidence Act 2006)
When is Visual Identification evidence admissable?
If a formal procedure is followed to obtain visual identification evidence of
the defendant’s involvement in an offence, or there is good reason for not following a formal procedure, that evidence is admissible in the court proceedings unless it is proven on the balance of probabilities that the evidence is unreliable.
If a formal procedure is not followed and there was no good reason for not following it, that evidence is inadmissible in court proceedings unless it is
proven beyond reasonable doubt that the circumstances of the identification have produced a reliable identification.
What are formal visual identification procedures?
ID parades and photo lineups.
A formal procedure is a procedure for obtaining visual identification evidence that meets these seven requirements:
- It occurs as soon as practicable after the offence is reported.
- The suspect is compared to no fewer than seven others, who are similar in appearance to the person to be identified.
- No indication is made to the person making the identification about who among the people in the procedure is the suspect.
- The person making the identification is informed that the suspect may or may not be among the people in the procedure.
- A written record of the procedure followed is sworn to be true and complete by the officer who conducted the procedure, and is provided in court to the judge and defendant.
- A pictorial record of what the person making the identification looked at is prepared and certified to be true and complete by the officer who conducted the procedure, and is provided in court to the judge and defendant.
- The procedure complies with any relevant regulations. (s45(3) Evidence Act 2006)
The six good reasons for not following a formal procedure are:
• The suspect refuses to take part in a formal procedure and Police do not
already hold a photograph or video that shows a true likeness of the
suspect.
• The suspect has a singular appearance (it cannot be disguised to make it
similar to those the suspect would be compared to).
• The suspect has substantially changed their appearance after the offence
occurred and before it was practical to hold a formal procedure.
• No officer involved in the investigation or the prosecution of the offence
could have reasonably anticipated that identification would be an issue
at the trial.
• An identification of the suspect was made to an officer soon after the
offence was reported and in the course of the initial investigation.
• An identification of the suspect was made to an officer after a chance
meeting between the person who made the identification and the suspect.
(s45(4) Evidence Act 2006)
R v Tuboe (1988) 3 CRNZ 581 (HC)
A victim identified the offender for one offence while he sat in court charged with another offence. This evidence was admissible, because the situation was not engineered by police to circumvent the accused’s refusal to undergo an ID parade.
Note: Such an informal ID in court is likely to be considered a good reason under s45(4) for not following a formal ID procedure only if it happens by chance.
Attendance at identification parade
No person charged with an offence can be compelled to attend an identification parade.
If they refuse to attend, no comment adverse to the person charged can be made.
Any person charged with an offence who attends an identification parade is entitled to have their solicitor present (s344B Crimes Act 1961).
An accused person must be advised of their rights in relation to the identification parade. R v Mei (1990) 3 NZLR 16, 24-25 (CA)
How is being charged with an offence restricted to the offence for which evidence of identification is required?
A suspect who refused to take part in an identification parade was placed among a group of people at a periodic detention centre, where he was informally identified by a witness.
The court refused to admit the evidence because he had been charged with an offence and had not been free to object to an identification taking place for that offence. R v Curran (1988).
Is refusal to participate in a formal procedure a good reason to not follow a formal procedure?
Yes… If a suspect refuses one, they may be asked to participate in the other.
Refusal of both methods may, in the absence of a reasonable photograph, be a good reason not to carry out a formal procedure.
If you do not have a photograph of the suspect, you should ask the suspect to allow you to take one.
If the suspect refuses, document the refusal and make a note on the file of the reason no formal identification procedure was followed.
Who is responsible for preparing and conducting an ID parade?
If possible, by an employee with the position level of sergeant or senior sergeant.
The O/C case can be present, but must not take part in the proceedings.
When do Identification witnesses need to provide particulars?
If the defendant or person acting on their behalf so requests, the prosecutor must supply:
• the name and address of each identification witness (a person who
claims to have seen the offender in the circumstances of the offence),
whether or not that witness will be called
• each witness’s written description of the offender
• a copy of any identikit picture or other drawing made by any such
witness.
The judge may make an order excusing the prosecutor from supplying the name and address of an identification witness if they are satisfied that the order is necessary to protect the witness or any other person. (s14A Criminal Disclosure Act 2008)
Photo Line ups should contain..
In addition to the suspect, photographs of no fewer than seven people who are of similar appearance to the suspect.
For example, if the suspect is a bearded Caucasian male, the people in the photographs must be bearded Caucasian males.
Voice identification evidence means..
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.
(s4 Evidence Act 2006)
Is voice identification admissable?
Voice identification is inadmissible unless the prosecution can prove on the balance of probabilities that the circumstances giving rise to the identification were reliable. (s46 Evidence Act 2006)
Explain the findings of R v Waipouri [1992] 3 NZLR 450, 454 (HC)
It provides an example of what may be required to prove reliability.
The judge admitted voice identification evidence because:
• the victim had ample opportunity at the scene to become familiar with the suspect’s voice, and
• the identification occurred only two days after the incident, and
• the victim recognised the voice immediately, and was quite sure it was that of the offender.
