612. Compellability of an Aboriginal Spouse. Two further miscellaneous issues arise within the scope of this Chapter. The first relates to the compellability of an Aboriginal traditional spouse. Chapter 14 deals with the recognition of Aboriginal traditional marriages for particular purposes, including spousal compellability in the law of evidence. It recommends that the parties to an Aboriginal traditional marriage, appropriately defined, should only be compelled to give evidence for and against each other in criminal cases to the same extent as persons married under the general law.
613. Identification Evidence. Identification evidence is often important, especially in criminal cases. It may take several forms, but the most common is eye-witness identification. The trial judge has a discretion to exclude identification evidence that would otherwise be admissible, for example because its prejudicial effect outweighs its probative value. He may warn the jury of the dangers of identification evidence, and he may order an acquittal where the identification is suspect and there is no other supporting evidence for the identification. The general question of identification evidence is considered in this Commission’s Report on Evidence (Interim), where proposals for reform are put forward, on the basis that more stringent controls on the admissibility of identification evidence are needed. The Department of Aboriginal Affairs in a submission to the Commission made the following comments:
We would endorse any proposal that the court retain power to exclude identification evidence if necessary, and would also support a mandatory judicial warning about the dangers of identification evidence. It is especially important in Aboriginal cases to ensure that any identification parades have been carefully conducted because of the danger of witnesses depending primarily on skin colour as an identifying feature. This applies to witnesses who may use skin colour as a primary feature when identifying a person of whom they have only had a ‘fleeting glimpse’. We are also concerned that court identification of Aboriginals without prior out-of court identification could be similarly biased.
Plainly, this is an argument about reform of the general law, not directed to the present Terms of Reference. However the interrogation requirements discussed in Chapter 22, in particular the requirement of notification of a lawyer or Aboriginal legal service and the requirement of a prisoner’s friend to be present during an identification parade, will help in overcoming the difficulties referred to. No further recommendation with respect to identification evidence involving Aborigines is required.