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Evidence: 17th August OUTLINE 8: IDENTIFICATION EVIDENCE: Edmonds, Turaki - CA cases, adding to what's already a fairly complicated area. Like confessions, the other big area has always been identification evidence. Normally reliability is a matter for the jury, but here it becomes an area of admissability. Visual Identification Evidence: Defined (Turaki focus on this). If it is visual identification evidence, s45 and the Act's other rules apply. S4 defines. Direct or circumstantial evidence and the time it was done, you saw the person there. Definition is important. The Act anticipates that a cop hearsay repetition of visual identification evidence is visual identification evidence. S45 in some circumstances allows in visual identification evidence - allows in an account (hearsay). Do you have to worry about the hearsay provisions too? Probably at the end of the day reliability is the focus of both sections (but what about availability?). Conflict unsolved. Voice Identification Evidence: Assertion of a person who heard a voice, in natural, electronic or mechanical form of the defendant or any other person who is involved with the crime. Visual identification is only focussed on the defendant, but this voice identification can cover other people involved with the crime. S126 special warning required from the judge when the case against the defendant depends wholly or substantially on the correctness of visual or voice identification (of the defendant or another person). (More added from Edmonds/Turaki)
19th August: Cops have a formal procedure for identification. 45(3). Will have trouble getting evidence in at trial if they don't follow the formal procedure, unless there is a good reason for not following it. R v Edmonds(?) case of recognition - should add to 45(4) "I know the guy, I went to school with him". Recognition case may be a good reason to not follow a formal procedure of identification. Edmonds/Turaki: Visual identification evidence is all focussing on the defendant was 'at or near a place'. But, when the witness is saying "I saw this group kicking someone to death, and the biggest kicker of all was a guy with a big afro hairstyle" this isn't visual identification evidence, it's observation evidence. When it's a case of what people were doing the particular event at the scene, it's observation. Not about 'who or what was near a place', it's about 'who did what, at a place'. Nor is it caught by s126 - special warning. S45(1),(2): To put pressure on cops/officers of enforcement agency when they want to get some visual identification evidence to bring to court, to follow a formal procedure. If they do follow a formal procedure, or if there was good reason for them not following a formal procedure, then 45(1) puts the onus on the defence to prove on the balance of probabilities that the identification evidence was unreliable.
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