Part 3.9 Identification Evidence Flashcards
Identification evidence definition
Identification evidence is defined in dictionary → means evidence that is—
● (a) 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
● (b) a report (whether oral or in writing) of such an assertion;
113 Application of Part
This part only applies in a criminal proceeding.
114 exclusion of visual identification evidence
(1) In this section, visual identification evidence means IE relating to identification based wholly/partly on what a person saw but doesn’t include picture IE (see s 115).
(2) VIE adduced by the prosecutor is not admissible unless
(a) an ID parade that included the A was held before the identification was made; or
(b) It would not have been reasonable to have held such a parade, or
(c) A 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.
(3) Without limiting matters in determining whether it was reasonable to hold an identification parade, Court it is to take into account:
(a) kind of offence concerned and its gravity
(b) importance of the evidence
(c) practicality of holding ID parade, regarding, inter alia:
(i) if the accused failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether the identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an ID parade having regard, among other things, to the relationship (if any) between the accused and the person who made the identification
(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the accused for such a parade to have been held.
(5)(a) If A refused to take part in ID parade unless their lawyer or other person was present
(b) there were at time parade going to be conducted, RG to believe not reasonably practicable for that lawyer/person to be present,
it is presumed that it wouldn’t have been reasonable to have held an ID parade at that time.
(6) In determining whether it was reasonable to have held an ID parade, court is not to take into account availability of pictures/photographs that could be used in making identifications.
115 Exclusion of evidence of identification by pictures
● (1) In this section, picture IE means IE relating to an identification made wholly or partly by the person who made identification examining pictures kept for use of POs.
● (2) (cant suggest in custody) PIE adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.
● (3) (has to be recent) subject to (4), PIE adduced by prosecutor not admissible if
(a) when pictures were examined, A was in custody of the police force investigating commission of the charged offence; and
(b) picture that was examined was made before the A was taken into police custody
● (4) But (3) n/a if (a) appearance of the A has changed significantly between time when offence committed and time when accused taken into that custody; or
(b) It was not reasonably practicable to make a picture of A after taken into custody
● (5) (preference for ID parade) PIE adduced by P not admissible if, when pictures were examined, A was in custody of the investigating police force, unless
(a) A refused to take part in an ID parade, or
(b) appearance of the A has changed significantly between time when offence committed and time when accused taken into that custody; or
(c) it would not have been reasonable to have an ID parade that included the A.
● (6) Sections 114(3), (4), (5) and (6) above apply to determine for (5)(c) if ID parade was reasonable.
● (7) If picture IE adduced by prosecutor is admitted, at the request of A, judge must:
(a) If picture taken after A taken into custody, inform jury of that fact; or
(b) otherwise, warn the jury that they must not assume the accused has a criminal record or has previously been charged with an offence.
● (8) This section does not render inadmissible picture IE adduced by P to rebut or qualify picture IE adduced by A.
(9) applies on top of s 114.
(10) In this section— (a) reference to picture includes reference to photo; and (b) a reference to making picture includes a reference to taking a photo.
