In many cases, surveillance or photos will be crucial evidence that will be introduced by the Crown at your trial. In some cases, the Crown will need to prove who the individual is on the video. The Crown may bring a Leaney application and/or a Nikolovski application.
What is a Leaney Application?
A Leaney Application is when the Crown attempts to have a witness identify someone they recognize in surveillance or a photo. The admissibility of this type of evidence is governed by the “prior acquaintance\better position” test. The test makes the identification/recognition evidence admissible if the witness had a prior acquaintance with the accused and is in a better position than the trier of fact to determine whether the recorded image is that of the accused.
The focus of the “prior acquaintance/better position” test is on: (a) the level of familiarity of the potential witness with the accused, having regard to the nature of the relationship between them, including the frequency and intensity of past contact; and (b) whether the prior relationship grounds a level of familiarity with the accused that permits the witness to provide valuable identifying information that a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or unlikely to ascertain for him or herself.
What is a Nikolovski Application?
A Nikolovski application is when the Crown (or defence) requests the trier of fact to make an identification of the accused based on the surveillance. If the recording (video or photo) has not been altered or charged, and the recording is of sufficient quality, a trier of fact may be in a position to look at the recording, and the accused in court, and conclude that the accused is the person in the recording.
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If you are facing a criminal charge, and need a criminal lawyer, please call us at (416) 613-0416 or (416) 595-9500 or contact us at email@example.com for a free consultation. We will meet with you to ensure you understand the court process, discuss the facts of your case and potential defences, and we will map out a trial strategy to help maximize your chances of an acquittal.