114Exclusion 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. S. 114(2) amended by No. 68/2009 s. 97(Sch. item 55.32). (2) Visual identification evidence adduced by the prosecutor is not admissible unless— S. 114(2)(a) amended by No. 68/2009 s. 97(Sch. item 55.32). (a) an identification parade that included the accused was held before the identification was made; or (b) it would not have been reasonable to have held such a parade; or S. 114(2)(c) amended by No. 68/2009 s. 97(Sch. item 55.32). (c) the accused 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 accused. (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— S. 114(3)(c)(i) amended by No. 68/2009 s. 97(Sch. item 55.32). (i) if the accused 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 S. 114(3)(d) amended by No. 68/2009 s. 97(Sch. item 55.32). (d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the accused and the person who made the identification. S. 114(4) amended by No. 68/2009 s. 97(Sch. item 55.32). (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 accused for such a parade to have been held. (5) If— S. 114(5)(a) amended by Nos 68/2009 s. 97(Sch. item 55.32), 17/2014 s. 160(Sch. 2 item 39.3). (a) the accused refused to take part in an identification parade unless an Australian legal practitioner acting for the accused, or another person chosen by the accused, was present while it was being held; and S. 114(5)(b) amended by No. 17/2014 s. 160(Sch. 2 item 39.3). (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 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.