Evidence describing an offender by reference to clothing, accessories and association with other persons, without describing physical characteristics or asserting that the accused was or resembled the offender, does not constitute 'visual identification evidence' under s 114 of the Evidence Act 2008 (Vic) and is not subject to the identification parade requirement in s 114(2). The link between such evidence and the accused must come from the content of the evidence itself, not from the manner in which counsel conduct the case. The prosecution may resile from a concession made at trial where the interests of justice require it, particularly where the concession was erroneous and the charged offences are serious.
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