#8547 - Identification Evidence - Litigation 2

Lit 2 20-21 Identification evidence

A. Fundamentals on identification evidence 2

1. Is the evidence relevant? S 55 2

2. Is it a criminal proceeding? s 113 – then ss 114-116 apply 2

3. Is it identification evidence? EA Dictionary definition; Trudgett 2

B. Visual identification: s 114 3

1. State rule for visual identification evidence: s 114(1)-(2). 3

2. Req 1#: Has s 114(2)(a), (b) or (c) been satisfied? 3

Issue 1#: Has s 114(2)(a) been satisfied: was an IP held? 3

Issue 2#: Was s 114(2)(c) satisfied: the D refused to take part in a parade. 3

Issue 3#: Was s 114(2)(b) satisfied: unreasonable to have held such a parade (taking into account s 114(3) factors), note s 114(4)-(6); Alexander; Ilioski 4

3. Req 2#: s 114(2) no intentional influence? 6

4. Req 3#: If admitted, need direction under s 116 that has s 116(a) and (b) 6

5. Issue 4#: Exclude/Limit under ss 135-137, with s 116 and 165 direction, SEE notes. 6

a) Limit use? S 136, 6

b) Exclude under s 135? 6

c) Exclude under 137? Eg Leroy and Graham 6

6. go to notes at bottom about ss 135-7, and s 116, 165 7

C. Picture identification: s 115 8

1. Is it picture identification: S 115(1), (10)? Then must satisfy s 115-6. 8

2. Exception 1# to all exclusions of picture ID.E: Where it is adduced to contradict or qualify picture adduced by D: s 115(8) 8

3. Exclusion 1#: picture IE inadmissible if pictures suggest that they are photos of persons in police custody: s 115(2) 8

4. Exclusion 2#: s 115(3) makes IE inadmissible if (a) picture ID occurred when D in police custody and b) examined pic made before taking into custody unless s 115(4)(a) appearance changed or (b) not reasonably practicable to take a photo: 8

5. Exclusion 3#: If the picture identification occurred when the D was in police custody, inadmissible under s 115(5), unless either s 115(5)(a), (b) or (c) is satisfied. 9

6. Req 4# from s 115(7): Judge direction on photo ID evidence 9

7. Req 5#: s 116 direction? see notes below 10

8. Req 6#: s 165 direction? (for all unreliable evidence) see notes in other section. 10

9. Issue; ss 135-7? Consider other notes. But for now s 137 is here. 10

D. Aural identification: Bulejcik 12

E. Judges Warnings for ID.E: s 116 (noting Dhanoa; Trudgett); s 165; and for picture ID 115(7); Kanaan; Domican (s 165(5) still relevant)) 12

1. For all ID evidence: s 116 (exceptions: Dhanhoa, Trudgett) 12

2. For all ID evidence: s 165(1)(b) if triggered by request 14

3. For Picture ID evidence must give s 115(7) direction 14

4. Kanaan direction for negative identification evidence 15

5. Domican warning (still relevant: s 165(5)) 16

F. Exclusions/Limitations: ss 135-137 go to other notes, but remember Festa ; and the different types of identifications listed here that can affect fairness 17

G. Appendix to Identification Evidence statute 21

Def	Definition: Under EA Dictionary: "identification evidence" means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant 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.
Reqs	Requirements: Req 1#: Must be an assertion by a person (ie not photos) Req 2#: An assertion that the D was or resembles the person near place where offence committed/act done at time at which offence/act was done. Must be an assertion that the D was or resembles (visually, aurally or otherwise) a person who was, present or near a place where: the offence was committed, or an act connected to that offence was done, at or about the time at which the offence was committed or the act was done Req 3#: Must be an assertion based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that time of place. What this includes identification by: Aural and voice, touch, smell and gait (not subject to 114-5) Identification of objects only if this assertion is to the effect that the D was or resembles a person present at the commission of the offence (or connected acts) at the time of the commission (or connected acts). (if object admitted Witnesses identify objects in circumstances such as police stations which reinforce impression that police believe objects are associated with crime: Clout) What this excludes: Negative identification evidence Description of what the offender looks like (if not tied to D) In-court demonstrations (eg accused speaking, wrting or wearing clothing to enable jury to make comparisons.) Does not include indirect evidence of presence, only direct evidence: W said that he introduced the accused to the complainant (at the relevant time). This was evidence of what the W said, not what the W saw hear or otherwise perceived. Although it is implicit that the accused and complainant were present at the time, the Dictionary definition is concerned with direct evidence of presence, not indirect evidence of the character involved in reciting the occurrence of an introduction: Trudgett
On ID objects	Principles relevant to scrutinising correct identification of people can apply also to identifying inanimate objects: Marijancevic Trial judge was obliged to direct jury on how ti could use Crown firearm exhibit and testimony which identified it as the shotgun used in an armed hold-up of bank: Theos R v Whalen – considered whether vehicle identification evidence was identification evidence within s 165(1)(b)

Def

Definition: Under EA Dictionary: "identification evidence" means evidence that is:

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:

(i) the offence for which the defendant 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.

Reqs

Requirements:

Req 1#: Must be an assertion by a person (ie not photos)
Req 2#: An assertion that the D was or resembles the person near place where offence committed/act done at time at which offence/act was done. Must be an assertion that the D was or resembles (visually, aurally or otherwise) a person who was, present or near a place where: the offence was committed, or an act connected to that offence was done, at or about the time at which the offence was committed or the act was done
Req 3#: Must be an assertion based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that time of place.

What this includes identification by:

Aural and voice, touch, smell and gait (not subject to 114-5)
Identification of objects only if this assertion is to the effect that the D was or resembles a person present at the commission of the offence (or connected acts) at the time of the commission (or connected acts). (if object admitted Witnesses identify objects in circumstances such as police stations which reinforce impression that police believe objects are associated with crime: Clout)

What this excludes:

Negative identification evidence
Description of what the offender looks like (if not tied to D)
In-court demonstrations (eg accused speaking, wrting or wearing clothing to enable jury to make comparisons.)
Does not include indirect evidence of presence, only direct evidence: W said that he introduced the accused to the complainant (at the relevant time). This was evidence of what the W said, not what the W saw hear or otherwise perceived. Although it is implicit that the accused and complainant were present at the time, the Dictionary definition is concerned with direct evidence of presence, not indirect evidence of the character involved in reciting the occurrence of an introduction: Trudgett

On ID objects

Principles relevant to scrutinising correct identification of people can apply also to identifying inanimate objects: Marijancevic
Trial judge was obliged to direct jury on how ti could use Crown firearm exhibit and testimony which identified it as the shotgun used in an armed hold-up of bank: Theos
R v Whalen – considered whether vehicle identification evidence was identification evidence within s 165(1)(b)

for visual identification:

State rule for visual identification evidence: s 114(1)-(2).
Req 1#: Has s 114(2)(a), (b) or (c) been satisfied?
1. Issue 1#: Has s 114(2)(a) been satisfied: was an ID Parade held?
2. Issue 2#: Was s 114(2)(c) satisfied: the D refused to take part in a parade.
3. Issue 3#: Was s 114(2)(b) satisfied: unreasonable to have held such a parade (taking into account s 114(3) factors), note s 114(4)-(6); Alexander; Ilioski
Req 2#: s 114(2) no intentional influence?
Req 3#: If admitted, need direction under s 116? Comply with (a) and (b)
Issue 4#: Exclusions or limitations under ss 135-137 – taking into account s 116 direction
1. Limit use? S 136 6
2. Exclude under s 135? 6
3. Exclude under 137? Eg Leroy and Graham 6
Conclusion: If not excluded – then give with direction under s 116

Visual identification evidence must comply with s 114 to be admitted.	Exclusionary rule under s 114(2): Visual identification evidence adduced by the prosecutor is not admissible unless under s 114(2): one of s 114(2)(a), (b), or (c) is satisfied and the identification was made without the person whom made it having been intentionally influenced to identify the defendant.
What is visual IE	Definition: “visual identification evidence" means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence: s 114(1)

Was an identification parade that included the D held before the identification was made? S 114(2)(a)
Complies with Procedures? The line-up should contain in addition to the suspect at least 6 or more people of similar age, height and appearance as the suspect not police officers: Procedures for the Evidence Act.
Consequences of satisfaction of s 114(2)(a): Consider rest of s 114(2), and whether a direction under s 116 should be given, whether it should be excluded.

	No obligation on a suspect to participate in an identification parade: R v Clune (No 2)

Intro	“(b) it would not have been reasonable to have held such a parade”
Law	Presumption 1#: If unfair to hold one, then presumed unreasonable under s 114(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 defendant for such a parade to have been held. Eg danger of displacement: Alexander - where W has been shown photographs of people (Eg brother) who bear strong resemblance to accused (R v McKellar) Unfair where witness has identified offender already: Carusi Sufficient numbers of people with similar appearance cannot be present despite reasonable efforts: R v Tahere note that The line-up should contain in addition to the suspect at least 6 or more people of similar age, height and appearance as the suspect not police officers: Procedures for the Evidence Act. Presumption 2#: If refused unless lawyer and not reasonable to have lawyer, presumed unreasonable under s 115(5): If (a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for...

Law

Presumption 1#: If unfair to hold one, then presumed unreasonable under s 114(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 defendant for such a parade to have been held.
1. Eg danger of displacement: Alexander - where W has been shown photographs of people (Eg brother) who bear strong resemblance to accused (R v McKellar)
2. Unfair where witness has identified offender already: Carusi
3. Sufficient numbers of people with similar appearance cannot be present despite reasonable efforts: R v Tahere note that The line-up should contain in addition to the suspect at least 6 or more people of similar age, height and appearance as the suspect not police officers: Procedures for the Evidence Act.
Presumption 2#: If refused unless lawyer and not reasonable to have lawyer, presumed unreasonable under s 115(5): If (a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for...

#8547 - Identification Evidence - Litigation 2 - Evidence Law

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