114. Exclusion of visual identification evidence

114. Exclusion of visual identification evidence

(1) In this section, 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.

(2) Visual identification evidence adduced by the prosecutor is not admissible unless-

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

(c) the defendant 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 defendant.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account-

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things-

(i) if the defendant 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 identification parade having regard, among other things, to the relationship (if any) between the defendant 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 defendant for such a parade to have been held.

(5) If-

(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held; and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present-

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

The Victorian Court of Appeal first considered the operation of these identification provisions in THD v The Queen [2010] VSCA 115.

The common law preference for identification parades as the fairest and least unreliable form of identification is retained. An accused can't be made to participate against their will and the refusal to participate can't be used by the prosecution for any other purpose but to explain why a lesser form of identification was used.

If an identification parade isn't done, s.114(2) provides that other forms of visual identification evidence will be inadmissible. The principal exceptions are (b) if it would not have been reasonable to hold a parade; or (c) the defendant refused to take part in such a parade. A series of non-exhaustive considerations are also included at (3).

Unlike Commonwealth legislation, there's no requirements for the conduct of identification parades in Victorian law and no requirement that they (or the refusal to participate in one) is recorded. If a parade was to be conducted unfairly, the general discretions to reject evidence at s. 135, s.138 and s.165(b) still apply.

For the purposes of s.114(2) it might be argued that it will not be reasonable to conduct an identification parade - a justification for admitting other evidence where one has not been conducted - where the witness would have recognised the suspect: DPP v Donald [199] NSWSC 949.

Evidence that goes to the identity of an offender is not, for that reason alone, evidence of identification: Bradshaw v State of Tasmania [2009] TASSC 39.

In R v Festa (2001) 208 CLR 593 , McHugh J drew a distinction between identification and mere similarity evidence, and suggested that warnings were not necessary for the latter. While this would appear to fit under the definition of identification evidence (discussed below) evidence of resemblance or similarity has been held not to be this kind of evidence - Dunford J [at 18]:

18 Although evidence which is not a positive identification, such as evidence that someone looked “similar to” or “like” the offender is not, standing by itself, sufficient to satisfy a jury of the identity of the offender beyond reasonable doubt: Pitkin v The Queen (1995) 69 ALJR 612, that does not mean that evidence of the general appearance or characteristics of an accused as similar to that of the person who committed the crime, sometimes referred to as “circumstantial identification evidence”, is not inadmissible, being proof of a circumstance usually, but not always, weak which with other evidence may point to the accused as the person who committed the crime: Festa v The Queen (2001) 208 CLR 593 at [56].

Recognition evidence

In R v Spero (2006) 13 VR 225, the Court of Appeal drew together earlier decisions (Davies & Cody v The King (1937) 57 CLR 170; R v Marijancevic (1993) A Crim R 272; The Queen v Lovett [2006] VSCA 5) that distinguish identification and recognition evidence. Where a person is well known to the witness the common law wariness that usually attaches to identification evidence does not apply. However, the definition of identification evidence provided in the Evidence Act 2008 suggests both identification and recognition evidence should be treated in the same way. Spigelman CJ in Trudgett v R [2008] NSWCCA 62 noted a literal approach could produce "absurd" consequences, and that the reliability of the evidence would turn upon the particular facts of the case, not its category..

Identification evidence

The definition of identification evidence is provided in the Dictionary.

Identification evidence does not include the production of a computer-generated or "artist's impression" of an offender, as such a product does not assert a resemblance to the accused (that will be a question for the jury: R v Kirby [2000] NSWCCA 330 [at 46]).