When assessing probative value of identification or recognition evidence under s 137 of the Evidence Act 2008 (Vic), a trial judge must take into account inherent infirmities affecting the quality of the evidence — including limited opportunity for observation, the witness's state of mind at the time, and the circumstances of subsequent photograph identification — without this constituting an impermissible assessment of credibility or reliability. Where a witness's identification only firmed after being shown a photograph in suggestive and uncontrolled circumstances, and the accused cannot effectively challenge those circumstances, the danger of unfair prejudice may be substantial and incapable of amelioration by judicial direction.
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