Overview Identification evidence is seen to be inherently fragile. In Alexander v R (1981) 145 CLR 395 at 426, Mason J stated that:
Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.
Despite this fragility, identification evidence is seen to be particularly seductive, especially as it is often given by witnesses who appear honest and convincing. Judicial experience has shown that such witnesses can be mistaken. It is often noted that serious miscarriages of justice have occurred in the past due to juries relying on such evidence (R v Burchielli  VR 611; Domican v R (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593; see also Jury Directions Act 2015 s36).
As juries may not know of this danger, they may need to be warned about it, to prevent them from giving too much probative value to evidence that may be flawed (R v Burchielli  VR 611; Domican v R (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593).
Jury Directions Act 2015 Part 4, Division 4 prescribes the content of the warning a judge may give in relation to identification evidence.
What is Identification Evidence? For the purposes of jury directions, “identification evidence” is defined in Jury Directions Act 2015 s35. That definition is broader than the definition which applies under the Evidence Act 2008. It extends to capture the various common law categories of identification evidence, including:
Positive identification evidence: evidence by a witness identifying a previously unknown person as someone they saw on a prior relevant occasion (see, e.g., Festa v R (2001) 208 CLR 593; R v Marijancevic (1993) 70 A Crim R 272);2
Recognition evidence: evidence by a witness that, at the time the relevant act was committed, they recognised a person who was present (due to their prior familiarity with that person) (see, e.g., R v Marijancevic (1993) 70 A Crim R 272; R v Lovett  VSCA 5);
Similarity evidence: evidence asserting that someone’s appearance or characteristics (e.g., age, race, stature, colour) are similar to that of a person seen on a prior occasion (see, e.g., R v Clune (No 2)  1 VR 1; Festa v R (2001) 208 CLR 593);3
Comparison evidence: evidence of a non-expert witness which compares two people or items which do not require particular expertise to compare (e.g., evidence comparing the voice of the accused with a voice on a tape) (see, e.g., Bulejcik v R (1996) 185 CLR 375; R v Theos (1996) 90 A Crim R 486 (Vic CA));4
Negative identification evidence: evidence identifying someone other than the accused as the offender, or evidence that the accused is not the offender (see, e.g., R v Pollitt (1990) 51 A Crim R 227).
When to Warn the Jury about Identification Evidence A judge must warn the jury about identification evidence where the prosecution or defence counsel requests such a direction, unless there are good reasons for not doing so. If no request is made by counsel, a judge has a residual obligation to give a warning if he or she considers that there are substantial and compelling reasons for giving the warning (Jury Directions Act 2015 ss12, 16).
For more information on the request for direction process or on the residual obligation, see 3.1A.1 - Bench Notes: Directions Under Jury Directions Act 2015.
When requesting a direction on identification evidence, the prosecution or defence must specify the significant matters that may make the evidence unreliable (Jury Directions Act 2015 s36).
Content of the Charge A direction on identification evidence will be sufficient where it:
Warns the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it;
And informs the jury of the following matters:
The significant matters which the trial judge considers may make the evidence unreliable (where a party has requested the direction, the judge should include those matters which the party has identified has significant, unless there are good reasons for not doing so); and
That a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken and that the mistaken evidence of a witness may be convincing; and
If relevant, that mistaken identification evidence has resulted in innocent people being convicted (Jury Directions Act 2015 s36(3)).
While the judge should address these matters in the same part of the charge, the splitting of these directions will not necessarily constitute error (R v Stewart (2001) 52 NSWLR 301).
It is common practice for all of these matters to be addressed when the evidence is admitted in the trial, as well as in the judge’s summing up (S Odgers, Uniform Evidence Law (8th ed, 2009) [1.4.2880]).
Additional directions, which are unrelated to the potential unreliability of identification evidence, may also be required where:
An identification is made wholly or partly by examining pictures kept for the use of police officers (Evidence Act 2008 s115); or
Evidence is given that the accused refused to participate in an identification parade (R v Davies  VSCA 90).
These Notes first provide a brief outline of the types of evidence which fall within the definition of identification evidence in the Jury Directions Act 2015. This outline informs the remainder of the Notes, which address, the content of the warning, and any additional directions that may be required.
In some cases, identification evidence may be substantially the only evidence of one or more elements. In such cases, it may be appropriate for the judge to clearly identify for the jury the importance of the evidence. Judges should discuss the issue with counsel and hear submissions on what additional directions or comments are appropriate. Options include:
When directing the jury about the element, direct the jury that the identification evidence is the only evidence (or substantially the only evidence) in support of that element and without that evidence, the element cannot be proved beyond reasonable doubt (see Charge: Sole evidence);
Directing the jury that the jury would need to be satisfied of the identification evidence beyond reasonable doubt before acting on it;
Commenting to the jury that the identification evidence is the only evidence, or the most significant evidence, in proof of the element and they can only be satisfied of the element beyond reasonable doubt if they are satisfied of the identification evidence;
Refer to the identification evidence and direct the jury that it must be satisfied that the identification evidence proves the relevant element beyond reasonable doubt.
"Identification Evidence" Under the Jury Directions Act 2015 and the Evidence Act 2008 Section 35 of the Jury Directions Act 2015 defines “identification evidence” as:
An assertion by a person, or a report of an assertion by a person, to the effect that—
he or she recognizes, or does not recognise, a person or object as the person or object that he or she saw, heard or perceived on the relevant occasion; or
the general appearance or characteristics of a person or object are similar, or are not similar, to the general appearance or characteristics of the person or object that he or she saw, heard or perceived on the relevant occasion—
visual identification evidence within the meaning of section 114 of the Evidence Act 2008; and
picture identification evidence within the meaning of section 115 of the Evidence Act 2008.
Identification evidence may therefore be given in relation to any person, whether he or she is the accused or not, as well as in relation to objects (Jury Directions Act 2015 s35; see also R v Bath  Crim LR 716 (CA); R v Kotzmann  2 VR 123)
As the definition of identification evidence in the Jury Directions Act 2015 refers to what the person making the assertion "saw, heard or perceived", it appears to apply to:
Aural identification (see, e.g., Bulejcik v R (1996) 185 CLR 375; R v Callaghan (2001) 4 VR 79); and
Identification by touch (see, e.g., AK v The State of Western Australia  WASCA 245), smell or taste (see, e.g., AK v The State of Western Australia  HCA 8 per Heydon J).
The definition adopted by the Jury Directions Act 2015 does not, however, extend to circumstances where a jury makes their own comparison, such as between a photograph or CCTV camera footage and the accused, or between voices which are captured on recordings.
It is unclear whether the definition of identification evidence in the Jury Directions Act 2015 covers comparison evidence given by a non-expert witness. Arguably, the definition does cover such evidence, as the section addresses identifications that occur on a “relevant occasion”. The term “relevant occasion” is not defined in the Act. Conceivably, a “relevant occasion” could include an occasion on which a witness hears an audio recording of a person’s voice. Further, the Explanatory Memorandum to the Jury Directions Bill 2015 contemplates that comparison evidence given by a non-expert witness will constitute identification evidence for the purposes of the Jury Directions Act 2015.
Method of identification The definition of identification evidence adopted in the Jury Directions Act 2015 encompasses identifications made by any method (e.g., identification parade, photo board identification or dock identification). This applies irrespective of whether the identification was conducted in or out of court (R v Taufua NSWCCA 11/11/1996; R v Tahere  NSWCCA 170; R v Thomason (1999) 139 ACTR 21).
The definition of identification evidence in the Jury Directions Act 2015 only covers assertions made by people (or reports of such assertions). It does not cover:
Identifications made by animals (e.g., tracker dogs) (R v Stewart (2001) 52 NSWLR 301);
Identifications made by computer software (e.g., using facial recognition software) (see, e.g., R v Tang (2006) 65 NSWLR 681).
Types of Identification Evidence The common law recognised several categories of identification evidence. These are described below, as the potential dangers of identification evidence differ between the categories.
Positive Identification Evidence Positive identification evidence is evidence by a witness identifying a previously unknown person as someone he or she saw on a prior relevant occasion. Such evidence may be used as direct or circumstantial proof of an offence (Festa v R (2001) 208 CLR 593).
An example of positive identification evidence is picture identification evidence, as defined under s115 of the Evidence Act 2008. Such evidence relates to ‘an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers’ i.e. identification of an accused through mug shots or photo boards (see, e.g. R v Carpenter  ACTSC 71 at ).
Recognition Evidence Recognition evidence is evidence from a witness that he or she recognises a person or object as the person or object that he or she saw, heard or perceived on a relevant occasion.
Similarity Evidence Similarity evidence is evidence that the general appearance or characteristics a person or object perceived is similar to the person or object perceived on a relevant occasion.
Comparison Evidence There are three ways in which comparisons may be made. These are comparisons:
By witnesses comparing people or items about which they have greater knowledge than the jury, but which do not require particular expertise to compare;
By witnesses comparing items about which they have particular expertise; and
By the jury comparing people or items which do not require particular knowledge or expertise to compare.
Only the first type of comparison listed above may be considered "comparison evidence" for the purposes of the Jury Directions Act 2015. It is clear that jury comparisons do not fall within the ambit of that Act. Such comparisons may, however, require directions at common law.5
Evidence comparing items about which a witness has particular expertise (e.g. fingerprints) should be treated as "opinion evidence" rather than "comparison evidence".6
Negative Identification Evidence The term "negative identification evidence" is generally used to refer to exculpatory evidence in which:
Someone other than the accused is identified as the offender; or
A witness states that the accused is not the offender (R v Pollitt (1990) 51 A Crim R 227; R v Johnson (2004) 147 A Crim R 151).
The term has also been used to refer to evidence that a witness failed to identify the accused from a photo-board or at an identification parade (see, e.g., Beresi v R  WASCA 67).
Negative identification evidence may be adduced by the defence, or by a prosecution witness in fulfilling its duty to call all relevant witnesses (R v Rose (2002) 55 NSWLR 701; Kanaan v R  NSWCCA 109).
This exculpatory evidence falls within the definition of ‘identification evidence’ under the Jury Directions Act 2015, as section 35 explicitly refers to statements that the witness does not recognise, or that the appearance of a person or object is not similar, to the person or object perceived on a relevant occasion.
The fact that negative identification evidence favours the accused does not itself provide a “good reason” for not giving a s36 warning (Kanaan v R  NSWCCA 109).
When to Give an Identification Evidence Warning Part 3 of the Jury Directions Act 2015 governs the circumstances in which a judge may need to warn the jury about the potential unreliability of identification evidence.
The overall effect of the scheme (as outlined below) is that a warning must usually be given in relation to identification evidence if the prosecution or defence counsel requests a warning or if the judge considers that there are substantial and compelling reasons for giving the warning despite the absence of a request (Jury Directions Act 2015 ss15, 16).
See Bench Notes: Directions Under Jury Directions Act 2015 for information on when directions are required under this residual obligation.
When is a Warning under Jury Directions Act 2015 s36 Required? The prosecution or defence counsel may request that the trial judge direct the jury on identification evidence. Such a request must be in accordance with Jury Directions Act 2015 s12 (Jury Directions Act 2015 s36(1)).
Counsel making such a request must specify the significant matters which may make the evidence unreliable (Jury Directions Act 2015 s36(2)).
Once a party has made such a request, the trial judge must give a direction in respect of identification evidence, unless there are good reasons for not doing so (Jury Directions Act 2015 s15).
Further, a trial judge must give a direction in respect of identification evidence if he or she considers that there are substantial and compelling reasons to do so, despite the absence of a request (Jury Directions Act 2015 s16).
When giving a direction in respect of identification evidence, the trial judge must:
Warn the jury of the need to exercise caution when determining whether to accept the evidence and the weight to be given to it; and
Inform the jury of the significant matters that he or she considers may make the evidence unreliable; and
Inform the jury that:
A witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and
The mistaken evidence of a witness may be convincing; and
If relevant, inform the jury that a number of witnesses may all be mistaken; and
If relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted (Jury Directions Act 2015 s36(3)).
What is a “Significant” Matter? The Jury Directions Act 2015 does not define what a “significant” matter is for the purposes of directions in respect of identification evidence. The matters which are significant will depend on the facts of the case and may include:
The circumstances of the sighting
Whether the person was known to the witness
The time that elapsed between the sighting and the reporting to police
Any differences between the description of the person and their actual appearance.7
The party requesting the direction must also specify the significant matters that may make the evidence unreliable. The role of the judge is to determine which of those matters are significant, and then direct the jury accordingly. Unless there are substantial and compelling reasons to do so, a judge does not need to add further matters which he or she considers significant (see Jury Directions Act 2015 ss15, 16).
Substantial and Compelling Reasons for a Warning In some cases, there may be substantial and compelling reasons for a judge to give an identification evidence warning even where such a direction is not sought by the parties (Jury Directions Act 2015 s16).
It is suggested that there will be “substantial and compelling” reasons for giving a direction in the following circumstances:
Identification evidence is a matter which the judge considers is in issue in the trial. It is possible, although very unlikely, that a judge may draw such a conclusion even where defence counsel indicates that he or she does not consider it to be in issue (e.g. if defence counsel makes a fundamental error regarding what is or is not in issue and this has not been addressed during discussions with the trial judge);
Identification evidence is a significant issue in the case. If it is a minor issue or only concerns a small portion of the evidence in the trial, it is unlikely that the reasons for giving an identification evidence direction would be substantial and compelling. On the other hand, if identification evidence is central to the issues in dispute, the direction is more likely to be necessary under the residual obligation; and
The reasons for giving the identification direction must substantially outweigh the reasons for not giving the direction. In applying the test, the judge must do more than merely weigh the reasons for giving the direction. He or she must also consider the reasons for not giving the direction.8
Factors affecting whether a direction is required The following sections describe common law principles regarding when identification evidence directions are necessary. These principles may provide guidance on when a judge should suggest that counsel request a warning.
Positive Identification Evidence At common law, a warning about positive identification evidence may be necessary where:
The evidence represents any significant part of the proof of guilt of an offence; and
The reliability of the identification is disputed (Domican v R (1992) 173 CLR 555; R v Burchielli  VR 611; Festa v R (2001) 208 CLR 593; Dhanhoa v R (2003) 217 CLR 1).
A warning may be needed if the issue of identification is “fairly and squarely raised as an issue”. This was for a judge to decide, in light of the circumstances of the case (R v MacKay  VR 623; Sindoni v R  VSCA 195).
It was unclear whether, at common law, a direction was required if the evidence was not disputed, but the judge considered that there was some evidence which cast doubt on the identification (compare R v Courtnell  Crim LR 115 (CA) and R v Bath  Crim LR 716 (CA).
The warning may be necessary in relation to direct and circumstantial positive identification evidence (Festa v R (2001) 208 CLR 593).
If the disputed identification evidence forms a significant part of the proof of guilt, a warning may need to be given even if a conviction could not be based on that evidence alone (e.g. if it is a purely circumstantial evidence, requiring other evidence to support it) (R v Crupi (1995) 86 A Crim R 229).
The need for a warning is not removed by the existence of other evidence on which the accused could be convicted. The judge should assume that the jury may decide to convict solely on the basis of the identification evidence (Domican v R (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593).
Even if there is other important evidence, if the jury could not convict without the identification evidence the judge may need to give a strong warning (R v Clune  VR 1).
A warning may be needed even if there is more than one identifying witness, as experience has shown that mistakes can occur where two or more witnesses have made positive identifications (R v Burchielli  VLR 611).
Even if the principal or sole defence goes to the credibility of the identifying witness (e.g., if the defence alleges that the identification evidence is fabricated, and the trial is conducted on that basis), it may be necessary to warn the jury about the dangers of identification evidence. This is due to the possibility that the jury will reject the defence argument. In such circumstances, the jury will then need to consider whether the identification evidence is reliable, and so will need to know about the potential dangers inherent in such evidence (Sindoni v R  VSCA 195. But see R v Courtnell  Crim LR 115; Shand v R  1 WLR 67).