Background: identification evidence under the uniform Evidence Acts

13.4 Eyewitness visual identification evidence is a notoriously problematic class of evidence.[1] Disputes about identity have been the cause of a significant number of miscarriages of justice, both in Australia and abroad.[2] During the 1970s, following a series of high profile cases in the United Kingdom (and elsewhere) in which there was held to have been a miscarriage of justice, and a developing body of psychological research, the common law became increasingly sensitive to the potential unreliability of identification evidence, and its inability to be tested by the normal procedures relied on in an adversarial trial.[3]

13.5 One obvious problem with identification evidence is that it is difficult to secure the accuracy of witness identification for a variety of reasons (for instance, the ‘vagaries of human perception and recollection’ such as memory distortion and suggestibility; in addition to factors such as stress, rapidity of events, or bad lighting at the time of the initial identification itself).[4] However, the most significant difficulty with identification evidence is that—in contrast with other categories of oral testimony—the confidence or apparent credibility of an eyewitness do not necessarily correlate with the degree of accuracy of this person’s identification.[5] In a response to the United Kingdom’s ‘Devlin Committee Report’ on eyewitness identification evidence,[6] Lord Gardiner observed:

The danger of identification is that anyone in this country may be wrongly convicted on the evidence of a witness who is perfectly sincere, perfectly convinced that the accused is the man they saw, and whose sincerity communicates itself to the members of the jury who therefore accept the evidence.[7]

13.6 In light of the inherent problems with identification evidence, compounded by the inability accurately to assess it in accordance with normal trial procedures, it is essential that mechanisms exist to ensure that any identification evidence put before a court is as accurate as possible. Accordingly, the uniform Evidence Acts impose procedural requirements governing the way in which identification evidence is obtained prior to trial with a view to enhancing its reliability.[8]

13.7 Part 3.9 of the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and the Evidence Act 2004 (NI) draw on, but strengthen and consolidate, the common law preference for identification parades as the most reliable form of identification. The Acts provide that for visual identification evidence to be admissible, the identification of the accused must have taken place at an identification parade, subject to certain exceptions.[9] In effect, this makes the holding of an identification parade a precondition to the admission of all other forms of identification evidence, unless an exception applies.[10] Picture identification is permitted in limited circumstances only and is subject to requirements which seek to remove, or at least to minimise, any unfairness to the accused.[11] Whenever identification evidence is admitted (and its reliability is at issue in the trial), the judge is required to give a warning to the jury that there is a special need for caution in accepting identification evidence.[12]

13.8 The Evidence Act 2001 (Tas) omits a number of the identification provisions in Part 3.9 of the uniform Evidence Acts. Specifically, s 114 (regulating the identification parade requirements) and s 115 (outlining the conditions for the use of police photographs) do not apply in that jurisdiction. However, the Evidence Act 2001 (Tas) includes a warning in s 116 with respect to evidence falling within the statutory definition of ‘identification evidence’.

[1] Alexander v The Queen (1981) 145 CLR 395, 426.

[2] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 354. See also the cases listed in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [416] and, more generally, Australian Law Reform Commission, Evidence, ALRC 38 (1987), Ch 15 (Commentary—identification evidence); Departmental Committee on Evidence of Identification in Criminal Cases, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976).

[3] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [420]–[423] lists the various psychological factors that can lead to unreliable or distorted memory of identification. See also Departmental Committee on Evidence of Identification in Criminal Cases, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976).

[4] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [420]–[421]; Alexander v The Queen (1981) 145 CLR 395, 426.

[5] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [428]–[429].

[6] Departmental Committee on Evidence of Identification in Criminal Cases, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976).

[7] United Kingdom, Parliamentary Debates (Hansard), House of Lords, 27 March 1974, vol 350, col 705–706 (Lord Gardiner).

[8] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [433].

[9] Evidence Act 1995 (Cth) s 114; Evidence Act 1995 (NSW) s 114; Evidence Act 2004 (NI) s 114.

[10] This differs from the common law approach, as illustrated by Alexander v The Queen (1981) 145 CLR 395, 400 where Gibbs CJ stated: ‘it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held’.

[11] Evidence Act 1995 (Cth) s 115; Evidence Act 1995 (NSW) s 115; Evidence Act 2004 (NI) s 115.

[12] Uniform Evidence Acts s 116. See also Dhanhoa v The Queen (2003) 217 CLR 1.