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sets out the rules governing the admissibility of visual identification evidence where the identification was made wholly or partly after examining pictures (defined to include photographs) kept for use by police officers. Subclause (2) makes it clear that if the pictures looked at by a witness suggest that the person is in police custody (for example, the picture displays a prisoner identification number), then the evidence will be inadmissible. This clause is based on the prejudice that could flow if a person appears to be in police custody in the picture and this influences selection of that picture by the witness. Subclause (3) sets out another limited exclusion. Under this subclause, the prosecution cannot adduce evidence where the visual identification occurs at a time when the defendant is in custody and the visual identification is of a photo taken at a time prior to the defendant being taken into custody. If there is a lapse in time between the photograph (for example) being taken of the defendant and the photograph being shown to a witness, that evidence will prima facie be inadmissible. This clause is designed to encourage police officers to provide current photographs for the purpose of identification. However, there are exceptions to this exclusion. These are set out in the next subclause. Subclause (4) provides that even if there has been a lapse of time between the taking of the photograph and the photograph being shown to a witness, identification evidence is admissible under this clause if either of the following two circumstances apply—
the appearance of the defendant has changed significantly during the lapsed period; or
it was not reasonably practicable to take a (second) picture after the defendant was taken into custody.
A qualification in relation to subclause (4) is contained in subclause (5). For the evidence to remain admissible, one of the following circumstances must exist—
the defendant refused to take part in an identification parade;
the appearance of the defendant has changed significantly during the lapsed period (accordingly, an identification parade would have been of little utility); or
it would not have been reasonable to have held an identification parade that included the defendant (for example, because there were insufficient appropriate people to include in the parade).
Subclause (7) sets out information and a warning that a judge must give in relation to identification evidence, if requested to do so by the defendant.