R v Elisara [2017] NZDC 23191

Published 23 May 2018

Application to exclude visual identification evidence — photo montage — whether formal procedure conducted as soon as practicable — whether formal procedure complied with requirements — pre-trial application — admissibility — Evidence Act 2006, s 45 — Ah Soon v R [2012] NZCA 48. The defendant sought to have visual identification evidence excluded on the basis that the formal procedure did not take place as soon as practicable and did not comply with requirements. The image was sourced from Facebook and it was argued to be sufficiently different from the seven other images that appeared in the photo montage that it did not comply with requirements that all images were to be similar. In respect of the first issue, the Crown accepted that a delay of 15 months meant that a formal procedure had not taken place "as soon as practicable". In considering the reliability of the visual identification evidence, the court noted that the eight photographs shown in the photo montage were of similar appearance including their hair colour, piercings and that the photograph of the defendant did not stand out in that respect however it did stand out as the defendant's photograph pictured her with lipstick on, with a slight smile and appeared to be posed with the purpose of being placed on a social media page. The court found that although there was no single telling issue, there were a number of subtle differences in the photograph that caused it to stand out, creating a real risk that the complainant's attention would be unfairly drawn to the defendant's image, particularly in the context of the complainant first having contact with the defendant through Facebook. The visual identification evidence was found to be inadmissible. Judgment Date: 13 October 2017.