ss 113-115 - identification evidence

Question 1

_____[type of evidence]_____ is an assertion by a person to the effect that an accused was or resembles a person who was present at the time of the alleged offending, or a report of an assertion

Answer 1

Identification evidence

Question 2

Eyewitness visual identification potentially has significant:
(1) __________ value, however, it is a “notoriously problematic class of
(2) __________.

Answer 2

(1) probative
(2) evidence

Question 3

The rules applicable to ID evidence only apply to which party?

Answer 3

The prosecution

Question 4

The rules applicable to ID evidence replace __________

Answer 4

the common law

Question 5

The rules applicable to ID evidence establish a set of exclusionary rules for:
(1) __________ and
(2) __________

Answer 5

(1) visual
(2) specified picture evidence

Question 6

Identification evidence (Dictionary):

REQUIRES - an assertion of (1) ________ or resemblance

INCLUDES
- visual and other ID (visually, (2) __________ or (3) __________)
- both positive ID and resemblance ev
- both in and out of court asserts (the latter which are subject to the (4) __________

EXCLUDE
- non-human evidence (machine based ID, facial recognition software, evidence based on ID made by animal/dog)
- persons other than the defendant
- exculpatory evidence

COVERS situations where the witness:
- does not see the defendant (as distinct from the perpetrator) directly - for instance, by relying on a picture or recording

Answer 6

(1) sameness
(2) aurally or
(3) otherwise
(4) hearsay rules

Question 7

Section 114 excludes:
(1) p________ ID evidence and
(2) requires at least a partially __________ to the ID (wholly aurally based evidence is excluded)

Answer 7

(1) picture
(2) visual basis

Question 8

ID evidence by police officers in Smith could not “rationally affect the assessment of the jury” when the conclusion of the evidence is based only on material that is not different in any substantial way to: __________

Answer 8

what is available to the jury

Question 9

ID evidence should not be regarded as “presumptively unfair”, however, it does require warnings. Those warnings should be taken into account before concluding that any prejudice that does arise would be: __________

Answer 9

unfair

Question 10

Police failure to comply with the procedures in relation to ID evidence of suspects may enliven which section:

Answer 10

section 138

Question 11

Section 114 - visual ID means ID evidence relating to an ID based wholly or partly on what a person saw, but it does not include: __________

Answer 11

picture identification evidence

Question 12

Section 114(2)
Visual identification evidence adduced by the prosecutor is NOT admissible unless:
(a) an ID parade was held, OR
(b) it would not have been r__________ to have held such a parade, OR
(c) the accused r__________ to take part in such a parade

AND

the ID was made without the person who made it having been intentionally influenced to ID the accused

Answer 12

(b) reasonable
(c) refused

Question 13

Section 114(3) - whether it was “reasonable to hold an ID parade” includes:
(a) the kind of offence and the __________ of the offence concerned, and
(b) the __________ of the evidence, and
(c) the practicality of holding an ID parade having regard to:
— (i) if the accused failed to cooperate, the manner/extent of, and the reason (if any) for, the failure; and
— (ii) in any case, to whether the ID was made at or about the time of the commission of the offence, and
(d) the appropriateness of holding an ID parade, having regard to (among other things) ________ (if any) between the A and the person making the ID

Answer 13

(a) gravity
(b) importance
(d) relationship

Question 14

Section 114(4) - it is presumed that it would not have been unreasonable to have held an ID parade if it would have been __________ to the accused for such a parade to have been held

Answer 14

unfair

Question 15

Section 113 - this Part (ID evidence) only applies to what type of proceeding?

Answer 15

Criminal proceeding

Question 16

In Fowkes, the Court of Appeal noted that s 114(2) was designed to address what risk? The risk of t__________

Answer 16

tainted identification processes and to reduce the risk of police intentionally attempting to influence a person’s identification

Question 17

If police intentionally influence a witness and it has a material effect on their evidence, the evidence will be: __________

Answer 17

Excluded (Fowkes)

Question 18

In applying s 114(2), the pros must establish the negative proposition that another person did NOT intentionally influence the witness. This is m__________ rather than d__________, and the Ct must not admit the evidence unless the pros demonstrates:
(1) there was no i__________ i__________ exerted W, or
(2) any attempt to II W did not have any material effect (Fowkes)

Answer 18

m - andatory
d - iscretionary

(1) intentional influence

Question 19

If police tell W that a suspect will be present in the parade, is that intentional influence?

Answer 19

No (R v To), but it is not recommended. It could affect W’s state of mind and affect the probative value of any ID (Blick [2000] NSWCCA 61, [25])