Section 114(2)(a) of the Evidence Act 1995 (NSW) applies to both in-court and out-of-court visual identification. The critical first step in applying the section is to identify the specific act of identification to which the impugned question is directed; only then can the court assess whether it was reasonable to hold an identification parade before that identification was made. The interpretation in R v Taylor [2008] ACTSC 52, which treated 'the identification' as referring only to in-court identification evidence, is wrong and should not be followed.
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