New South Wales Consolidated Acts

EVIDENCE ACT 1995 - SECT 115

115 Exclusion of evidence of identification by pictures

(1) In this section:
"picture identification evidence" means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.

(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.

(3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if:

(a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, and

(b) the picture of the defendant that was examined was made before the defendant was taken into that police custody.

(4) Subsection (3) does not apply if:

(a) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or

(b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody.

(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:

(a) the defendant refused to take part in an identification parade, or

(b) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or

(c) it would not have been reasonable to have held an identification parade that included the defendant.

(6) Sections 114 (3), (4), (5) and (6) apply in determining, for the purposes of subsection (5) (c) of this section, whether it would have been reasonable to have held an identification parade.

(7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant:

(a) if the picture of the defendant was made after the defendant was taken into that custody-inform the jury that the picture was made after the defendant was taken into that custody, or

(b) otherwise-warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence.

Note: Sections 116 (Directions to jury) and 165 (Unreliable evidence) also deal with warnings about identification evidence.

(8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the defendant.

(9) This section applies in addition to section 114.

(10) In this section:

(a) a reference to a picture includes a reference to a photograph, and

(b) a reference to making a picture includes a reference to taking a photograph.