Identification evidence — visual forms
Sections 116 and 165 Evidence Act 1995
The directions and warnings required in relation to evidence of identification are governed by ss 116 and 165 Evidence Act 1995 (“the Act”). The content of those directions, however, are taken mainly from common law cases such as Domican v The Queen (1992) 173 CLR 555 and R v Heuston (1995) 81 A Crim R 387.
Section 116 requires a direction to be given to the jury as to the special need for caution and the reasons for that caution in relation to identification evidence. Section 165(1)(b) requires that a warning be given where requested in relation to “identification evidence”.
One of the difficulties with this type of evidence is to determine when these sections apply having regard to the definition of “identification evidence” in the Dictionary to the Evidence Act.
Admissibility of identification evidence is governed by Pt 3.6 of the Act. Sections 114 and 115 of the Act limit the admissibility of “visual identification evidence” and “picture identification evidence” respectively.
See generally Uniform Evidence Law at [1.3.9400] and Criminal Practice and Procedure NSW at [3-s 114]ff.
By reason of the definition of “identification evidence” for the purposes of the Act, only direct evidence identifying the accused falls within s 116 of the Act. Therefore, circumstantial evidence that indirectly identifies the accused as the offender does not fall within the provisions of the Act: Trudgett v R (2008) 70 NSWLR 696 at , . Nor does the Act apply where there is no issue about the accused’s identification: Dhanhoa v The Queen (2003) 217 CLR 1.
Visual identification evidence — identification based wholly or partly on what a person saw but does not include picture identification evidence: s 114(1).
Picture identification evidence — identification made wholly or partly by a person examining pictures kept for the use of police officers. Picture identification evidence is not admissible if the picture suggests that the subject is in police custody: s 115(2). As to the dangers associated with identification by photographs, see Festa v The Queen (2001) 208 CLR 593 at .
Resemblance evidence — evidence to the effect that the offender “looked like” or “sounded like” the accused. It is not sufficient to sustain a conviction but is admissible as part of a circumstantial case: Pitkin v The Queen (1995) 69 ALJR 612; R v Cohen  NSWCCA 339. Such evidence falls within the definition of “identification evidence” in the Dictionary of the Act and ss 116 and 165.
Recognition evidence — evidence where the offender is purportedly recognised as the accused by someone who knows or is familiar with the accused eg a family member. It falls within the scope of “identification evidence” for the purposes of the Act: see Trudgett v R, above.
Opinion evidence — evidence of identification, particularly of a voice, can be given as a type of expert evidence. The distinction between opinion and identification evidence is often difficult to determine. See Smith v The Queen (2001) 206 CLR 650 at [15- and R v Marsh  NSWCCA 331. Opinion evidence may or may not be relevant or admissible but it does not fall within “identification evidence” for the purposes of the Act.
Descriptive evidence — evidence in the form of a description of the offender. It is not within the scope of “identification evidence”, but may warrant a warning in a particular case: Collins v R  NSWCCA 162.
In-court identification — evidence of identification of the accused as the offender by a witness giving evidence. It is subject to exclusion under s 114 of the Act: R v Tahere  NSWCCA 179 at , ; Walford v DPP (NSW)  NSWCA 290. If such evidence is given, the judge should immediately direct the jury that it is of no evidentiary value on the issue of the guilt of the accused: Aslett v R  NSWCCA 188 at .
[3-035] Identification of objects
Evidence of identification of an object, such as a motor vehicle, does not fall within “identification evidence” but may warrant a warning under s 165 because of its potential unreliability: R v Stewart (2001) 52 NSWLR 301 at .
[3-040] Exculpatory identification evidence
Where identification evidence is given assisting the defence case, whether called by the Crown or not, a warning as to the general unreliability of identification evidence under s 165 can be given if requested by the Crown. However, the warning should be tempered and of a limited nature sufficient for the jury to understand the potential for unreliability of such evidence. See R v Rose (2002) 55 NSWLR 701 at  where there was identification of the deceased at a time after, on the Crown case, she had been murdered by the accused. See also Kanaan v R  NSWCCA 109 as to directions on the onus of proof in such a case.
[3-045] Content of identification direction
The direction required under s 116 is that there is a “special need” for caution before accepting identification evidence. There is no particular form of words which must be used in the direction required: s 116(2). It is required that the judge explain why:
there is a special need for caution — why identification evidence in general may be unreliable, thus explaining why there is a special need for caution: R v Clarke (1997) 97 A Crim R 414 at 428, and
the identification evidence in the particular case may be unreliable, by pointing out the particular matters in that case which may cause it to be unreliable: ss 116(1), 165(2).
As part of the second requirement, the judge must direct the jury that they are bound to take those particular matters into consideration in determining whether they will (or will not) rely on that evidence. That is what is meant by giving the weight of the judge’s authority to the necessary directions: R v Heuston (1995) 81 A Crim R 387 at 394, where Hunt CJ at CL explained what had been said in Domican v The Queen (1992) 173 CLR 555 at 562 (see also 564, 569); R v Clark (1993) 71 A Crim R 58 at 72.
The directions should indicate matters that may affect the reliability of the identification rather than matters that made it unreliable: R v Riscuta  NSWCCA 6 at .
The direction should make it clear that reliability and honesty are different issues so that an honest witness can be mistaken as can several witnesses. It is suggested that comments or warnings on the credibility of an identification witness be given separately from directions on the reliability of the identification.
[3-050] Suggested direction — visual identification evidence
There is an important direction I must now give you concerning the evidence of [name of witness] in which [he/she] identified [the accused] as the person who [insert circumstances — for example, fired the gun at the deceased]. In giving you these directions you should not think that I am giving you any indication of what I think about the reliability of the evidence. As I told you at the beginning of the trial that is not my task. My task is to make sure that you consider everything that is relevant to the assessment of the reliability of the evidence. That assessment is your function, not mine. Judges have an experience with the law that members of the community generally do not have. Judges know that identification evidence may be unreliable and there are a variety of reasons why that is so.
Evidence that [the accused] has been identified by a witness must be approached by you with special caution before you accept it as reliable. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witness[es]. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that [his/her] evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if you thought [name of witness] was entirely honest in the evidence that [he/she] gave, you must still approach the task of assessing the reliability of [his/her] evidence with special caution.
So, special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
You must carefully consider the circumstances in which [name of witness] made [his/her] observation of the person. The circumstances in which the witness made [his/her] observation of the person can affect the reliability of identification evidence.
Special need for caution before accepting identification evidence in the circumstances of the case: s 116(1)(b) Evidence Act 1995
There are a number of matters that have been specifically raised in this case that require your consideration.
[The trial judge should identify for the jury the particular matters in the case and make brief reference to the arguments in relation to each of them. The following matters are given by way of example and would need to be adapted to the circumstances of the individual case. In most cases the jury would be assisted by the judge providing the answer to the question posed.]
Was the person identified a stranger to [name of witness]? It is obviously harder to identify strangers than it is to identify people who are well known to us. [recite evidence]
What opportunity did [name of witness] have to make [his/her] observation of the person? [Name of witness] said the period of observation [he/she] had was … [recite evidence].
Did the witness focus [his/her] attention on the person or was it just a casual sighting that did not have any significance for the witness at the time? [recite evidence]
In what light was it made? You have heard evidence from [name of witness] about the light at the time of the alleged offence [recite evidence — for example, poor/bright, etc].
Was there anything about the person observed which would have impressed itself upon the witness? In other words, was there anything distinctive about the person? [recite evidence — for example, tattoo, albino, etc]
Was there any special reason for remembering the person observed?
Was the witness under any stress or pressure at the time? For example, if a person is woken up suddenly or hit in the face. If [name of witness] is under any stress or pressure at the time, how do you think that might have affected [his/her] ability to accurately observe the person and store the image of the person’s appearance in [his/her] memory?
Does [name of witness] come from the same racial background as the person identified? That is also something you can bear in mind. It may be more difficult for a member of one race to identify an individual of another racial group. [recite evidence]
When was [name of witness] first asked for a description of the person and how fresh would [his/her] memory have been at that time?
How did the description given by [name of witness] compare with the appearance of [the accused]?
How long was it between the sighting of the person and the giving of the description to the time that [name of witness] identified [the accused]?
You must give consideration to each of those matters. Any one of those circumstances may possibly lead to error.
[Reference may then be made, if thought appropriate, to any other matters raised by counsel upon this issue that have not already been the subject of the direction required by the statute.]
In this case the evidence of [name of witness] is that [he/she] recognised someone that [he/she] knew. [summarise circumstances if appropriate] It is perhaps easier to understand the possibility of error when the evidence is given by someone who has not previously known [the accused], but errors may also occur even when the witness has previously known [the accused]. Mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had seen. This is something you should bear in mind. Just because a witness claims to have known the person, there remains a possibility of mistake.]
In this case more than one witness has identified [the accused]. This is a matter that you may take into account in determining how strong the evidence is. However, this does not mean that there is necessarily less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one.]
What I have done is to tell you about the need for special caution in coming to your decision about whether you accept the identification evidence. There is this need for special caution because of the potential unreliability of the evidence and I have told you the reasons why that might be so. I want you to clearly understand this so that you can make your decision about the reliability of the evidence by taking into account all of the matters that are relevant to that task.
I repeat that I have not been expressing any personal views about the evidence. I have not been giving you any hints about how I think you should decide this case. My task, as I have told you, is limited to giving you the legal directions that you have to comply with to ensure that [the accused] receives a fair trial.