New South Wales Consolidated Acts

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EVIDENCE ACT 1995 - SECT 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.



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