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Lit 2 2021 Identification evidence Table of Contents
A. Fundamentals on identification evidence
1. Is the evidence relevant? S 55 2. Is it a criminal proceeding? s 113 – then ss 114116 apply Def
3. Is it identification evidence? EA Dictionary definition; Trudgett
Reqs
On ID
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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. Requirements: 1. Req 1#: Must be an assertion by a person ( ie not photos) 2. 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 3. 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: o Aural and voice, touch, smell and gait (not subject to 1145) o 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: o Negative identification evidence o Description of what the offender looks like (if not tied to D) o Incourt demonstrations (eg accused speaking, wrting or wearing clothing to enable jury to make comparisons.) o 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 • Principles relevant to scrutinising correct identification of people can apply also to identifying
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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 holdup of bank: Theos R v Whalen – considered whether vehicle identification evidence was identification evidence within s 165(1)(b)
B. Visual identification: s 114
for visual identification: 1. State rule for visual identification evidence: s 114(1)(2). 2. Req 1#: Has s 114(2)(a), (b) or (c) been satisfied? a. Issue 1#: Has s 114(2)(a) been satisfied: was an ID Parade held? b. Issue 2#: Was s 114(2)(c) satisfied: the D refused to take part in a parade. c. 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 3. Req 2#: s 114(2) no intentional influence? 4. Req 3#: If admitted, need direction under s 116? Comply with (a) and (b) 5. Issue 4#: Exclusions or limitations under ss 135137 – taking into account s 116 direction a. Limit use? S 136 6 b. Exclude under s 135? 6 c. Exclude under 137? Eg Leroy and Graham 6 6. Conclusion: If not excluded – then give with direction under s 116
1. State rule for visual identification evidence: s 114(1)(2). Visual identification evidence must comply with s 114 to be admitted. What is visual IE
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Exclusionary rule under s 114(2): Visual identification evidence adduced by the prosecutor is not admissible unless under s 114(2): a. one of s 114(2)(a), (b), or (c) is satisfied and b. the identification was made without the person whom made it having been intentionally influenced to identify the defendant.
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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)
2. Req 1#: Has s 114(2)(a), (b) or (c) been satisfied? Issue 1#: Has s 114(2)(a) been satisfied: was an IP held? • Was an identification parade that included the D held before the identification was made? S 114(2)(a) • Complies with Procedures? The lineup 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. Issue 2#: Was s 114(2)(c) satisfied: the D refused to take part in a parade.
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No obligation on a suspect to participate in an identification parade: R v Clune (No 2)
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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 Intro Law
More on pres. 1#: s 114(4) unfairness
More on impracticality under s 114(3)
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“(b) it would not have been reasonable to have held such a parade” • 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. a. Eg danger of displacement: Alexander where W has been shown photographs of people (Eg brother) who bear strong resemblance to accused (R v McKellar) b. Unfair where witness has identified offender already: Carusi c. Sufficient numbers of people with similar appearance cannot be present despite reasonable efforts: R v Tahere note that The lineup 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 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. • Factors under s 114(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: s 114(3)(a) b. the importance of the evidence: s 114(3)(b) c. the practicality of holding an identification parade having regard, among other things (under s 114(3)(c)): i. if the defendant failed to cooperate in the conduct of the paradeto the manner and extent of, and the reason (if any) for, the failure, and ii. in any caseto 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: s 114(3)(d) • Irrelevant: Availability of photos: 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: s 114(6) • Unfairness relevant for s 114(4) a. Unfair to hold an identification parade where witness has identified offender already: Carusi b. Courts recognize it is potentially unfair to hold an identification parade where a witness has been previously shown a photograph of the accused, creating the potential danger of a displacement: Alexander v R. c. Displacement effect can occur where witness has been shown photographs of the accused’s brother who bore a strong resemblance to the accused: R v McKellar d. Where sufficient numbers of people with similar appearance cannot be present despite reasonable efforts: R v Tahere • Impracticality under s 114(3)(c) making it unreasonable to hold an identification parade day after assault under s 114(2)(b): Leroy and Graham . Here W required to identify who
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in a big affray was involved, but the same people played in a football match the next day which some witnesses watched (before any identification parade could be held) (1) 13 potential witnesses in small community would recognize people in the line up (2) Leroy had huge size and physique difficult to match in a fair array (3) the accused’s football club left the area after the Sunday, but it was accepted that it was good to have prompt identification, even by photograph, because prompt identification increased likelihood of suspects images remaining fresh in minds of identifying Ws. (4) As 2 of the W’s had seen the accuseds again on the Sunday and confirmed their ID using photographs taken of the accuseds at the football match on the Sunday, an identification parade for those witnesses might merely have confirmed identification made on Sunday displacing their recollections from the Saturday night. Unreasonableness under s 114(2)(b) in Ilioski o The accused had developed a black ee and was pretty well bruised up – wouldn’t have been practicable to find sufficient men of general similar appearance to the appellant, and any identification parade was unlikely to have provided a fair array o Formal identification was necessary to effect arrest identification by Masri (W) could not have been put off to a later date o A subsequent identification parade – not valuable – as Masri’s picture of assailant in his mind already replaced by picture of man he saw with police: Alexander
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3. Req 2#: s 114(2) no intentional influence? •
Issue 4#: s 114(2) satisfied: no intentional influence to identify D
4. Req 3#: If admitted, need direction under s 116 that has s 116(a) and (b) •
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If identification evidence has been admitted, the judge is to inform the jury under s 116(1): (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury.
5. Issue 4#: Exclude/Limit under ss 135137, with s 116 and 165 direction, SEE notes. a) Limit use? S 136, The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing. b) Exclude under s 135? The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
c) Exclude under 137? Eg Leroy and Graham Intro to s 137
Rule: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. • Process: (insert cases about the process to undertake) Factors to • Where there is an issue of lack of people in the lineup of equal comparison: take into • If no others in the lineup are of similar appearance could be unfair prejudice account for that is outweighed by the probative value of the evidence – excluded under s 137: s 137 issues R v Fisher. (Here none of the men had a similar appearance to appellant who was in ID aboriginal with shoulderlength hair.) parades • Vietnamese/Korean not the same? In R v To – Vietnmaese man placed in line up with seven Korean men. The Korean witness said the offender had a Vietnamese accent. Said that she recognized a couple of the Koreans and when she saw the accused ‘I sort of didn’t look at the other men in the lineup’. The other witness said that she did not notice the nationality of the participants in the lineup. Unsuccessful appeal submissions were based on ss 137 (and 138). o Examples from Leroy and Graham : Appeal grounds: (1) police had failed to obtain descriptions of offenders before witnesses were shown photographs. Early descriptions are highly important for testing of identifications. Despite this: judge held from case laws that this failure alone doesn’t warrant exclusion of evidence. Judge had directed jury and remedied potential unfairness. (2) Leroy distinctive and promoinent in photos? But no suggested criminality. (3) Graham said he was only aborigine and had goatee beard. But 2
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other people in photos had dark complex and goatee beard hadn’t been referred to as an identifying feature by witnesses prior to trial nor in their evidence in chief. S 137 ground unsuccessful • Leroy: Reasoning for 137 – Appeal grounds: (1) police had failed to obtain descriptions of offenders before witnesses were shown photographs. Early descriptions are highly important for testing of identifications. Despite this: judge held from case laws that this failure alone doesn’t warrant exclusion of evidence. Judge had directed jury and remedied potential unfairness. (2) Leroy distinctive and prominent in photos? But no suggested criminality. (3) Graham said he was only aborigine and had goatee beard. But 2 other people in photos had dark complex and goatee beard hadn’t been referred to as an identifying feature by witnesses prior to trial nor in their evidence in chief. S 137 ground unsuccessful.
6. go to notes at bottom about ss 1357, and s 116, 165
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Lit 2 2021 Identification evidence Table of Contents
A. Fundamentals on identification evidence
1. Is the evidence relevant? S 55 2. Is it a criminal proceeding? s 113 – then ss 114116 apply Def
3. Is it identification evidence? EA Dictionary definition; Trudgett
Reqs
On ID
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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. Requirements: 1. Req 1#: Must be an assertion by a person ( ie not photos) 2. 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 3. 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: o Aural and voice, touch, smell and gait (not subject to 1145) o 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: o Negative identification evidence o Description of what the offender looks like (if not tied to D) o Incourt demonstrations (eg accused speaking, wrting or wearing clothing to enable jury to make comparisons.) o 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 • Principles relevant to scrutinising correct identification of people can apply also to identifying
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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 holdup of bank: Theos R v Whalen – considered whether vehicle identification evidence was identification evidence within s 165(1)(b)
B. Visual identification: s 114
for visual identification: 1. State rule for visual identification evidence: s 114(1)(2). 2. Req 1#: Has s 114(2)(a), (b) or (c) been satisfied? a. Issue 1#: Has s 114(2)(a) been satisfied: was an ID Parade held? b. Issue 2#: Was s 114(2)(c) satisfied: the D refused to take part in a parade. c. 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 3. Req 2#: s 114(2) no intentional influence? 4. Req 3#: If admitted, need direction under s 116? Comply with (a) and (b) 5. Issue 4#: Exclusions or limitations under ss 135137 – taking into account s 116 direction a. Limit use? S 136 6 b. Exclude under s 135? 6 c. Exclude under 137? Eg Leroy and Graham 6 6. Conclusion: If not excluded – then give with direction under s 116
1. State rule for visual identification evidence: s 114(1)(2). Visual identification evidence must comply with s 114 to be admitted. What is visual IE
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Exclusionary rule under s 114(2): Visual identification evidence adduced by the prosecutor is not admissible unless under s 114(2): a. one of s 114(2)(a), (b), or (c) is satisfied and b. the identification was made without the person whom made it having been intentionally influenced to identify the defendant.
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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)
2. Req 1#: Has s 114(2)(a), (b) or (c) been satisfied? Issue 1#: Has s 114(2)(a) been satisfied: was an IP held? • Was an identification parade that included the D held before the identification was made? S 114(2)(a) • Complies with Procedures? The lineup 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. Issue 2#: Was s 114(2)(c) satisfied: the D refused to take part in a parade.
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No obligation on a suspect to participate in an identification parade: R v Clune (No 2)
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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 Intro Law
More on pres. 1#: s 114(4) unfairness
More on impracticality under s 114(3)
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“(b) it would not have been reasonable to have held such a parade” • 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. a. Eg danger of displacement: Alexander where W has been shown photographs of people (Eg brother) who bear strong resemblance to accused (R v McKellar) b. Unfair where witness has identified offender already: Carusi c. Sufficient numbers of people with similar appearance cannot be present despite reasonable efforts: R v Tahere note that The lineup 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 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. • Factors under s 114(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: s 114(3)(a) b. the importance of the evidence: s 114(3)(b) c. the practicality of holding an identification parade having regard, among other things (under s 114(3)(c)): i. if the defendant failed to cooperate in the conduct of the paradeto the manner and extent of, and the reason (if any) for, the failure, and ii. in any caseto 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: s 114(3)(d) • Irrelevant: Availability of photos: 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: s 114(6) • Unfairness relevant for s 114(4) a. Unfair to hold an identification parade where witness has identified offender already: Carusi b. Courts recognize it is potentially unfair to hold an identification parade where a witness has been previously shown a photograph of the accused, creating the potential danger of a displacement: Alexander v R. c. Displacement effect can occur where witness has been shown photographs of the accused’s brother who bore a strong resemblance to the accused: R v McKellar d. Where sufficient numbers of people with similar appearance cannot be present despite reasonable efforts: R v Tahere • Impracticality under s 114(3)(c) making it unreasonable to hold an identification parade day after assault under s 114(2)(b): Leroy and Graham . Here W required to identify who
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in a big affray was involved, but the same people played in a football match the next day which some witnesses watched (before any identification parade could be held) (1) 13 potential witnesses in small community would recognize people in the line up (2) Leroy had huge size and physique difficult to match in a fair array (3) the accused’s football club left the area after the Sunday, but it was accepted that it was good to have prompt identification, even by photograph, because prompt identification increased likelihood of suspects images remaining fresh in minds of identifying Ws. (4) As 2 of the W’s had seen the accuseds again on the Sunday and confirmed their ID using photographs taken of the accuseds at the football match on the Sunday, an identification parade for those witnesses might merely have confirmed identification made on Sunday displacing their recollections from the Saturday night. Unreasonableness under s 114(2)(b) in Ilioski o The accused had developed a black ee and was pretty well bruised up – wouldn’t have been practicable to find sufficient men of general similar appearance to the appellant, and any identification parade was unlikely to have provided a fair array o Formal identification was necessary to effect arrest identification by Masri (W) could not have been put off to a later date o A subsequent identification parade – not valuable – as Masri’s picture of assailant in his mind already replaced by picture of man he saw with police: Alexander
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3. Req 2#: s 114(2) no intentional influence? •
Issue 4#: s 114(2) satisfied: no intentional influence to identify D
4. Req 3#: If admitted, need direction under s 116 that has s 116(a) and (b) •
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If identification evidence has been admitted, the judge is to inform the jury under s 116(1): (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury.
5. Issue 4#: Exclude/Limit under ss 135137, with s 116 and 165 direction, SEE notes. a) Limit use? S 136, The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing. b) Exclude under s 135? The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
c) Exclude under 137? Eg Leroy and Graham Intro to s 137
Rule: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. • Process: (insert cases about the process to undertake) Factors to • Where there is an issue of lack of people in the lineup of equal comparison: take into • If no others in the lineup are of similar appearance could be unfair prejudice account for that is outweighed by the probative value of the evidence – excluded under s 137: s 137 issues R v Fisher. (Here none of the men had a similar appearance to appellant who was in ID aboriginal with shoulderlength hair.) parades • Vietnamese/Korean not the same? In R v To – Vietnmaese man placed in line up with seven Korean men. The Korean witness said the offender had a Vietnamese accent. Said that she recognized a couple of the Koreans and when she saw the accused ‘I sort of didn’t look at the other men in the lineup’. The other witness said that she did not notice the nationality of the participants in the lineup. Unsuccessful appeal submissions were based on ss 137 (and 138). o Examples from Leroy and Graham : Appeal grounds: (1) police had failed to obtain descriptions of offenders before witnesses were shown photographs. Early descriptions are highly important for testing of identifications. Despite this: judge held from case laws that this failure alone doesn’t warrant exclusion of evidence. Judge had directed jury and remedied potential unfairness. (2) Leroy distinctive and promoinent in photos? But no suggested criminality. (3) Graham said he was only aborigine and had goatee beard. But 2
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other people in photos had dark complex and goatee beard hadn’t been referred to as an identifying feature by witnesses prior to trial nor in their evidence in chief. S 137 ground unsuccessful • Leroy: Reasoning for 137 – Appeal grounds: (1) police had failed to obtain descriptions of offenders before witnesses were shown photographs. Early descriptions are highly important for testing of identifications. Despite this: judge held from case laws that this failure alone doesn’t warrant exclusion of evidence. Judge had directed jury and remedied potential unfairness. (2) Leroy distinctive and prominent in photos? But no suggested criminality. (3) Graham said he was only aborigine and had goatee beard. But 2 other people in photos had dark complex and goatee beard hadn’t been referred to as an identifying feature by witnesses prior to trial nor in their evidence in chief. S 137 ground unsuccessful.
6. go to notes at bottom about ss 1357, and s 116, 165
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