Identification Evidence Notes PDF

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Identification Evidence 

In some cases, when the elements of the offence are clearly present, the focus of the trial is on whether the prosecution can prove beyond reasonable doubt that the accused was the offender

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The prosecution may adduce circumstantial and/or direct evidence connecting the accused to the crime. This might include evidence of DNA, fingerprints, CCTV footage of the offender, expert evidence, coincidence evidence, evidence of opportunity, recent possession and so forth.

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Whilst all of this evidence goes to the issue of ‘identification’, it is not controlled by Part 3.9 Uniform Evidence Legislation – Evidence Act 1995

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Part 3.9 of the uniform Evidence Acts was adopted to respond to the difficulties with eyewitness identification evidence: particularly, the difficulties associated with human perception, memory and recognition and their implications for the reliability of assertions as to the identity of perpetrators of criminal offences

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Part 3.9 controls ‘eye witness’ or ‘positive identification’ evidence.

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This part regulates the admissibility of identification evidence in criminal proceedings. Hence this part only applies in criminal proceedings.

Other discretionary exclusions – s135, 137, 165 

As with other evidence, identification evidence is subject to discretionary exclusions.

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Part 3.9 of the Act deals with the admissibility of such evidence while discretionary provisions such as ss 135, 137 & 165 deal with assessment of the evidence’s probative value and reliability.

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The s 138 public policy discretion may apply where, for example, there has been a failure to comply with the requirements, legislative or otherwise, for the holding of an identification parade.

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The application s 137 is particularly important to identification evidence given that focus on the risk that the jury will give such evidence more weight than it deserves. The application of the section requires the court to make an assessment of this risk; assess the probative value of the evidence and then make a judgement about whether the probative value is outweighed by the risk of unfair prejudice.

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The rules concerning the admissibility of identification evidence are of particular importance as identification evidence is generally more unreliable and difficult to assess than other types of evidence. Additionally, cross-examination (the standard method for testing) does not provide adequate protection against unreliable identification.

Definition identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion.

Identification evidence is evidence which is evidence of a witness who claims ‘to recognise the accused as the person seen on an occasion that is relevant to the charge.’ Festa v The Queen (2001) 2008 CLR 593, 610 e.g. ‘it was that woman in the dock’, or ‘it was that man in the photo’ 

Three aspects of the definition of identification narrow down which assertions are subject to Part 3.9: 1. The assertion must be that the defendant is or resembles someone i.e. the assertion cannot be about: people other than the defendant, unidentified people (e.g. I saw a woman run into the bank and the run out again 10 minutes later), pictures (e.g. comfit identification), animals or things (e.g. the defendant’s car). 2. The person whom the defendant supposedly looks like must be someone: who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done 3. The assertion must be ‘wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time.’

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The term ‘wholly or partly’ leaves open the possibility that an assertion may incorporate information the witness gained elsewhere, for example, ‘the bank robber talked a lot like the creepy flatmate my sister once told me about.’

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The identifying witness must be an eye witness.

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Assertions may include: o Recognition – ‘I just saw Hillary Clinton rob a bank!’ o Identity – ‘That’s the robber over here!’

o Resemblance – ‘That looks a lot like her’ o Non-visual recognition, identification or resemblance – ‘That smells like my Mum’ 

The common law distinction between evidence of resemblance and evidence of positive identification has been largely eradicated under the Acts. Notably, both forms of evidence attract a judicial direction under s 116.

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Because identification evidence requires that the assertion be made by a person, based on their perception at the relevant place and time, it does not apply to CCTV footage, recognition of photos, comparison of photos, fingerprints, DNA, or alibi evidence.

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A ‘comfit identification’ (a picture created by a trained police artist based on a witness’s description of the offender) is not identification evidence – Aouad and ElZeyat v The Queen (2011) NSWCCA 61.

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There must be a positive assertion of identity or resemblance (i.e. ‘he is not the man I saw’ is not a positive assertion’).

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Critically, the definition does not capture evidence of the description of an offender, where that description may bear similarities to the accused. Even though such evidence of similarities might be central to determining the issue of identity, the definition requires an assertion of identity or resemblance: R v David Taufua [1996] NSWSC 538. “…there was nothing to link the evidence of what Mr Little saw at the railway station with the appellant as opposed to anybody else of that general description. That link was necessary before the evidence could be described as identification evidence.”

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Positive identification evidence has been singled out for special treatment because of the high risk of misidentification and consequent wrongful conviction. As explained by McHugh J:

Experience has shown that juries are likely to give positive-identification evidence greater weight than that to which it may be entitled. Few witnesses are as convincing as the honest – but perhaps mistaken – witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances. Festa v The Queen (2001) 2008 CLR 593, 614

Visual identification evidence Visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence. 

Section 114(2)(a) establishes a presumption that visual identification evidence adduced by a prosecutor will not be admissible unless ‘an identification parade that included the defendant was held before the identification was made. Exceptions this rule, however, include when: 1. 114(2)(b) It would not have been reasonable to have held such a parade; or

2. 114(2)(c) The defendant refused to take part in such a parade. 

This accords with the common law view that: The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime. Alexander v The Queen (1981) 145 CLR 395, 399-400 (Gibbs CJ)

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Critically, the witness cannot be ‘intentionally influenced to identify the defendant’ 114(2)

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There is no requirement for an identification parade for aural or other sensory identifications.

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The function of the identification parade is to reduce the risk that the witness will mistake resemblance for identity.

The ‘reasonableness condition’ 

Sections 114(3)-(5) provide further details about the reasonableness condition.

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The court may determine on the basis of three matters that an identification parade was unreasonable and therefore not required as a precondition for the admissibility of visual identification evidence. 1. The kind and gravity of the offence involved. E.g. its is more reasonable to require a parade to be conducted for a serious violent offence (e.g. robbery or homicide) than for a traffic infringement (114(3)(a)). 2. Reasons for any refusal by the defendant to participate. This includes availability of legal representation. E.g. the defendant should not be able to insist on a particular lawyer’s presence if this cannot be practically arranged due to distance or expense (114(5)). 3. Relationship between the witness and the defendant. E.g. there is no use asking a witness to identify a close relative by means of an identification parade (114(3)(d)).

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In sum, a court must take into account a number of factors set out in s 114(3), (4), (5) and (6). Such factors include, inter alia, the kind of offence, and the gravity of the offence, the importance of the evidence, the practicality of holding a parade, and any relationship between the defendant and the person making the identification.

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Critically, ‘it is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held’. (114(4))

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‘In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.’ (114(6))

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The Court in R v Thomason (2009) 3 ACTLR 21 established that it was not reasonable to have had conducted an identification parade where the witness had identified the offender prior to speaking to the witness.

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Similarly, the court in Peterson v The Queen [2014] VSCA 111 held that it would not be reasonable to hold an identification parade where the witness has seen the offender in the media or on social media.

Picture Identification Evidence picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. 

The requirements for conducting a picture identification are not legislatively prescribed in NSW, nor do they appear to be the subject of detailed consideration in the NSW Police Force Code. Again, this contrasts with the Commonwealth approach where such requirements are contained in the Crimes Act 1914 (Cth), ss 3ZO and 3ZP.

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The procedure is only briefly discussed within the NSW Police Code of Practice of Crime.

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The procedure involves a police officer, who is independent to the investigation, presenting a series of photographs depicting persons of similar resemblance to the defendant. The witness is allowed the opportunity to select an image (or images) they firmly believe to depict the offender. The procedure is video recorded, and an accompanying evidentiary statement is prepared by the officer.

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Rules concerning the quality of the images are established at common law. In order to avoid any unfair prejudice to the defendant, the court must give attention to the actual photographs as well as the procedure adopted.

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Importantly, the images must not suggest that the defendant was in police custody or has a criminal record. This is expressed in statute at s 115(2): Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.

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The images must be consistent with those of passport photographs taken for ‘driving, boating and shooter’s licenses’ (Pace v The Queen (2014) 247 at [24]), and the subjects must not appear ‘drug or alcohol affected, or carrying injuries, suggestive of police custody’ (Ibid, 26).

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Importantly, s 115(3)(a) &(b) requires that the picture identification procedure is not conducted while the defendant is in police custody, or before the defendant is taken into police custody, unless: o 115(4)(b) - It was not reasonably practicable to make a picture of the defendant after the defendant was taken into police custody, or o 115(5)(a) - the defendant refuses to take part in an identification parade, or o 115(5)(b) - The defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into custody, or

o 115(5)(c) - It would not have been reasonable to have held an identification parade that included the defendant. 

Evidence of identification using photographs may be admissible even if there is no valid reason why an identification parade has not been held (unlike the requirements under s 114). The proper approach at common law is to consider whether the conviction can safely be sustained on the whole of the evidence.

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The preference for identification parades over picture identification, is due to the problematic nature of using images. Firstly, there is a significant difference between two-dimensional images and real-life persons. Secondly, the use of picture identification denies the accused the opportunity to be present during the process and ‘examine the conditions or safeguards adopted against error’. Lastly, it is undeniable that possession of an accused’s photograph by police, is suggestive that the accused might have a criminal record, or perhaps even a propensity to commit crime of the same nature for which they are charged.

Admissibility of Identification Evidence 

In the event that ‘identification evidence’ is admitted under Part 3.9 UEL and there is a jury, s 116 requires that judge tell the jury of the ‘special need for caution before accepting identification evidence’ and ‘of the reasons for the need for caution, both generally and in the particular circumstances of the cases’.

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This accords with the common law duty to warn as established in Domican v The Queen (1991) 173 CLR 555, 561-562: Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of the [identification] evidence in the circumstances of the particular case.’ A warning in general terms is insufficient. The attention of the jury should be drawn to any weaknesses in the identification evidence. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability if the identification evidence.’

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S 116 covers assertions of resemblance as well as identity.

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All instance of identification evidence will be evidence of previous representations and therefore within the scope of the hearsay rule.

The dangers of identification evidence 

Adolph Beck Case – 1896 – falsely accused of serial fraud with identifications form 11 of ‘his victims’.

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The Processes Involved. The recording of a mental image is quite different from making a photographic record. Unlike a photograph, a recollection may change over time. The ephemeral nature of a mental image was recognized by Justices Evatt and McTiernan in Craig v R[16] where they analysed the elements which underly an assertion by a witness that he recognises a particular person. In a joint judgment they stated: An honest witness who says ‘the prisoner is the man who drove the car’ whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: 1. that he observed the driver; 2. that the observation became impressed upon his mind; 3. that he still retained the original impression; 4. that such impression has not been affected, altered, or replaced ... 5. that the resemblance between the original impression, and the prisoner is sufficient to base a judgment, not of resemblance, but of identity.

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Psychological research reveals that each of the stages listed by Justices Evatt and McTiernan is subject to factors which can weaken the value of the final identification.

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In the initial stage of observation and its impression upon his mind there are said to be two types of factors which may affect a witness’ ability to perceive accurately: event factors (e.g. exposure time, light conditions) and witness factors (e.g. person’s ability to cope with stress).

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Sources of Unreliability—Distortion of Memory. What gives eyewitness testimony its particular weaknesses are the processes followed in the investigation processes of crimes. Inevitably the eyewitness receives information about the events and suspect. This has a serious potential for distortion of memory. A number of factors have been identified including but not limited to: 1. Expectations (e.g. Expecting a colleague to make a remark they usually make) 2. Self-centred biases (we tend to exaggerate our answers in questions which may reflect favourably or unfavourably upon us. The need to make our recollection consistent and probable and harmonious causes us to fill gaps and repress information that will create conflicts) 3. Motivations – (In an identification situation, there is also pressure to remember which can cause incorrect recollection to be produced—the desire to be correct, observant, helpful, not appear foolish) 4. Post event information - Often after witnessing an important event, one is exposed to new information about it....