Evidence from police officers or other observers of what an identifying witness said during a photographic identification procedure is inadmissible hearsay under s 59(1) of the Evidence Act 1995, even though such evidence was classified as primary (direct) evidence at common law following Alexander v The Queen. The s 66(2)(b) exception does not rescue such evidence because the 'asserted fact' required to be fresh in memory is the original encounter with the person identified, not the mental image at the time of the identification act. Identifying witnesses may themselves testify to the circumstances of their own acts of identification as original evidence of their own states of mind.
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