Subpart 6—Identification evidence

45 Admissibility of visual identification evidence

(1)

If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.

(2)

If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

(3)

For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—

(a)

that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and

(b)

in which the suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect; and

(c)

in which no indication is given to the person making the identification as to who among the persons in the procedure is the suspect; and

(d)

in which the person making the identification is informed that the suspect may or may not be among the persons in the procedure; and

(e)

that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(f)

that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(g)

that complies with any further requirements provided for in regulations made under section 201.

(4)

The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:

(a)

a refusal of the suspect to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):

(b)

the singular appearance of the suspect (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):

(c)

a substantial change in the appearance of the suspect after the alleged offence occurred and before it was practical to hold a formal procedure:

(d)

no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:

(e)

if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officer’s initial investigation:

(f)

if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

Section 45(3)(b): amended, on 8 January 2017, by section 16(1) of the Evidence Amendment Act 2016 (2016 No 44).

Section 45(3)(c): amended, on 8 January 2017, by section 16(1) of the Evidence Amendment Act 2016 (2016 No 44).

Section 45(3)(d): amended, on 8 January 2017, by section 16(1) of the Evidence Amendment Act 2016 (2016 No 44).

Section 45(4)(a): amended, on 8 January 2017, by section 16(1) of the Evidence Amendment Act 2016 (2016 No 44).

Section 45(4)(b): amended, on 8 January 2017, by section 16(1) of the Evidence Amendment Act 2016 (2016 No 44).

Section 45(4)(c): amended, on 8 January 2017, by section 16(1) of the Evidence Amendment Act 2016 (2016 No 44).

Section 45(4)(e): amended, on 8 January 2017, by section 16(2) of the Evidence Amendment Act 2016 (2016 No 44).