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 3.9 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 [38], [50]. 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 [22].

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 [2002] 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-[16] and R v Marsh [2005] 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 [2006] 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 [1999] NSWCCA 179 at [27], [32]; Walford v DPP (NSW) [2012] 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 [2009] NSWCCA 188 at [56].

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 [104].

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 [314] 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 [2006] NSWCCA 109 as to directions on the onus of proof in such a case.

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:

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 [2003] NSWCCA 6 at [61].

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.