The Guidelines Referring to Admissibility of Visible Identification Proof in NSW

September 16, 2023by Naomi Cramer

It was him!

An identification by an individual on the scene of an alleged crime may be highly effective proof earlier than a jury.

In any case, why would anybody determine an individual they weren’t sure was chargeable for a crime? They had been current and such a critical and probably life-altering incident will need to have left an indelible print on their reminiscence, proper?

However the reality of the matter is, visible identification proof has confirmed again and again to be unreliable, with many trustworthy and well-meaning however mistaken eye-witnesses fingering the unsuitable particular person – resulting in wrongful convictions and the grave injustice of harmless individuals spending a few years in jail, earlier than different proof – comparable to DNA proof – proves they had been harmless all alongside.

The scope for mistaking an individual’s id is especially b

A watch-witness (or sufferer) figuring out a suspect may be highly effective proof for prosecutors in a felony case, nonetheless not all ‘visible identification proof’ is dependable or, certainly, admissible at trial. 

The next outlines the foundations concerning the admissibility of identification proof  in visible types in NSW felony trials.

What’s visible identification proof?

The Proof Act 1995 defines ‘identification proof’  as an assertion by an individual to the impact {that a} defendant was, or resembles (visually, aurally or in any other case) an individual who was, current at or close to a spot the place:

  •  the offence for which the defendant is being prosecuted was dedicated; or
  •  an act linked to that offence was finished;
  • a report (whether or not oral or in writing) of such an assertion.

This assertion should relate to concerning the time at which the offence was dedicated or the act was finished, being an assertion that’s based mostly wholly or partly on what the particular person making the assertion noticed, heard or in any other case perceived at that place and time.

Identification proof can come within the type of:

  • Proof of recognition, eg. “that’s the man I noticed stabbing the sufferer”
  • Proof of resemblance, eg. “the person I noticed stabbing the sufferer had purple hair and was a stocky construct just like the person I see now”.

‘Visible identification proof’ is a sub-type of identification proof, outlined beneath part 114 of the Proof Act 1995 as:

identification proof referring to an identification based mostly wholly or partly on what an individual noticed however doesn’t embrace image identification proof.

Beneath the Act, ‘visible identification proof’ is handled individually from ‘image identification proof’. Image identification proof is outlined beneath part 115 of the Act as:

identification made wholly or partly by the one who made the identification analyzing photos stored for using law enforcement officials.

The reliability of eye-witness identification will depend on loads of elements together with how a lot time has elapsed after the occasion, the potential for contamination of reminiscences, how nicely the particular person knew the particular person recognized and the setting on the time of witnessing the occasion.

Due to this, identification proof based mostly round eye-witness accounts is handled cautiously by the courts.

The admissibility of visible identification proof

Beneath part 114 of the Proof Act 1995, visible identification proof adduced by a prosecutor is mostly not admissible except:

  • an identification parade that included the defendant was held earlier than the identification was made, or
  • it will not have been affordable to have held such a parade, or
  • the defendant refused to participate in such a parade.

An ‘identification parade’ is the place the police put a suspect in a line-up of individuals. They then ask a witness to take a look at the line-up to see if they will decide the suspect out as the one who dedicated the offence. Police should accumulate someplace between eight and twenty individuals who look just like the suspect. This could embrace age, peak and look however the lineup might not embrace law enforcement officials.

The Australian Regulation Reform Fee describes identification parades as essentially the most dependable type of visible identification proof. Alternate options to an identification parade, embrace techniques such because the witness observing the suspect in isolation and making a optimistic visible identification – an method which carries an actual danger of bias.

Issues that will likely be taken under consideration by the court in figuring out whether or not it was affordable to carry an identification parade, embrace:

  • The type of offence, and the gravity of the offence, involved, and
  • The significance of the proof, and
  • The practicality of holding an identification parade having regard, amongst different issues–
  • If the defendant did not cooperate within the conduct of the parade–to the style and extent of, and the explanation (if any) for, the failure, and
  • Whether or not the identification was made at or concerning the time of the fee of the offence, and
  • The appropriateness of holding an identification parade having regard, amongst different issues, to the relationship (if any) between the defendant and the one who made the identification.

It’s presumed that it will not have been affordable to have held an identification parade if it will have been unfair to the defendant for such a parade to have been held. This contains if their lawyer was unable to be current.

Whether or not by way of an identification parade or different means, part 114(2) of the Act additionally makes it express that visible identification proof will solely be admissible if  identification was made with out the one who made it being deliberately influenced to determine the defendant.

What are the foundations for admitting image identification proof?

Image identification proof is considered as much less dependable than visible identification proof. Part 115 of the Act makes clear that image identification proof is not going to be admissible if:

  • The images examined recommend that they’re photos of individuals in police custody; or
  • When the photographs had been examined, the defendant was within the custody  and the image used was taken earlier than the defendant was taken into custody (except the defendant’s look has modified dramatically).
  • The defendant was in custody and an identification parade was able to being undertaken.

Jury cautions about identification proof

Part 116 of the Proof Act 1995 notes that if identification proof is to be admitted the decide is to tell the jury:

  •  that there’s a particular want for warning earlier than accepting identification proof, and
  • of the explanations for that want for warning, each usually and within the circumstances of the case.

While there aren’t any prescriptions on how this warning ought to be made, the NSW Criminal Trial Courts Bench Guide suggests the next wording concerning the necessity for warning for visible types of identification proof:

Proof that [the accused] has been recognized by a witness should be approached by you with particular warning earlier than you settle for it as dependable. These instructions relate solely to the reliability of the identification proof given, to not the honesty of the witness[es]. A witness could also be trustworthy however that doesn’t essentially imply that the witness will give dependable proof. As a result of the witness who offers proof of identification truthfully and sincerely believes that [his/her] proof is appropriate, that proof will normally be fairly spectacular, even persuasive. So right here, even in case you thought [name of witness] was completely trustworthy within the proof that [he/she] gave, you will need to nonetheless method the duty of assessing the reliability of [his/her] proof with particular warning.

So, particular warning is critical earlier than accepting identification proof due to the likelihood {that a} witness could also be mistaken of their identification of an individual accused of a crime. The expertise of the felony courts through the years, each right here in Australia and abroad, has demonstrated that identification proof might transform unreliable. There have been some infamous instances through the years by which proof of identification has been demonstrated to be unsuitable after harmless individuals have been convicted.

It’s essential to fastidiously think about the circumstances by which [name of witness] made [his/her] statement of the particular person. The circumstances by which the witness made [his/her] statement of the particular person can have an effect on the reliability of identification proof.

Extra complete wording is offered if there are specific circumstances that give rise to a necessity for warning, comparable to:

There are a selection of issues which were particularly raised on this case that require your consideration.

[The trial judge should identify for the jury the particular matters in the case and make brief reference to the arguments in relation to each of them. The following matters are given by way of example and would need to be adapted to the circumstances of the individual case. In most cases the jury would be assisted by the judge providing the answer to the question posed.]

  • Was the particular person recognized a stranger to [name of witness]? It’s clearly tougher to determine strangers than it’s to determine people who find themselves well-known to us. [recite evidence]
  • What alternative did [name of witness] must make [his/her] statement of the particular person? [Name of witness] stated the interval of statement [he/she] had was … [recite evidence].
  • Did the witness focus [his/her] consideration on the particular person or was it only a informal sighting that didn’t have any significance for the witness on the time? [recite evidence]
  • In what gentle was it made? You may have heard proof from [name of witness] concerning the gentle on the time of the alleged offence [recite evidence — for example, poor/bright, etc].
  • Was there something concerning the particular person noticed which might have impressed itself upon the witness? In different phrases, was there something distinctive concerning the particular person? [recite evidence — for example, tattoo, albino, etc]
  • Was there any particular motive for remembering the particular person noticed?
  • Was the witness beneath any stress or strain on the time? For instance, if an individual is woken up all of the sudden or hit within the face. If [name of witness] is beneath any stress or strain on the time, how do you suppose which may have affected [his/her] capability to precisely observe the particular person and retailer the picture of the particular person’s look in [his/her] reminiscence?
  • Does [name of witness] come from the identical racial background because the particular person recognized? That can be one thing you may keep in mind. It could be tougher for a member of 1 race to determine a person of one other racial group. [recite evidence]
  • When was [name of witness] first requested for an outline of the particular person and the way contemporary would [his/her] reminiscence have been at the moment?
  • How did the outline given by [name of witness] examine with the looks of [the accused]?
  • How lengthy was it between the sighting of the particular person and the giving of the outline to the time that [name of witness] recognized [the accused]?

It’s essential to give consideration to every of these issues. Any a type of circumstances might presumably result in error.

Going to court for a felony matter?

If you will court over a felony case, name Sydney Criminal lawyers anytime on 9261 8881 to rearrange a free first convention throughout which considered one of our skilled felony defence lawyers will advise you of your choices and the easiest way ahead, and struggle for the optimum end result.

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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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