Where a witness has previously misidentified another person, and there is a substantial delay before identifying the accused from a photoboard, the probative value of the identification evidence may be so low as to be outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 2008 (Vic), notwithstanding that the jury will hear evidence of the witness's mistakes and receive judicial directions. A determination under s 137 involves no exercise of discretion and is not subject to House v The King principles; the appellate court decides for itself whether the trial judge was correct. Victorian police officers questioning a suspect in South Australia are not 'police officers' within the meaning of the Summary Offences Act 1953 (SA), s 79A.
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