13.9 The definition of ‘identification evidence’ in the uniform Evidence Acts constrains the operation of the identification evidence provisions:
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.
13.10 The definition of ‘identification evidence’ in the Acts does not include identification evidence of a person other than the defendant, evidence about an object or item, and does not extend to civil proceedings. It also requires an ‘assertion by a person’, thus excluding evidence of security surveillance footage or machine-based identification.
Evidence of resemblance
13.11 At common law, a distinction is made between evidence of resemblance (‘evidence that a person shares certain features or attributes in common with the accused or that he or she looks like the accused’) and evidence of positive identification (where a witness claims to recognise the defendant as the person seen on the relevant occasion). While both forms of evidence are admissible, evidence of resemblance alone is not sufficient to ground a conviction, and instead forms part of a circumstantial case. Moreover, a judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence.
13.12 In contrast to the approach at common law, the definition of ‘identification evidence’ under the uniform Evidence Acts includes evidence that the defendant ‘resembles’ a person who was present at or near the place where the relevant offence took place. This means that evidence that the defendant ‘looks like’ or has similar features to the perpetrator of an offence will be subject to Part 3.9 of the uniform Evidence Acts, including ss 114 and 116.
13.13 It has been suggested in consultation that evidence of resemblance should not be treated as ‘identification evidence’ under the Acts, and should instead simply form part of the circumstantial case of the party presenting it. However, the Commissions’ view is that the wording adopted in the uniform Evidence Acts leaves no doubt that evidence of resemblance will fall within the definition of ‘identification evidence’ if it fits the other criteria in the section. This is consistent with the fact, discussed earlier, that the reliability of eyewitness identification evidence is not necessarily reflected in the degree of confidence or language used in the testimony by the witness.
13.14 Indeed, in the Interim Report from the previous Evidence inquiry (ALRC 26), a suggestion was made that eyewitness evidence should only be permitted if expressed in terms of resemblance because a statement that the defendant ‘looks like’ the perpetrator is the most accurate evidence that a witness can give. If a witness is under pressure to say ‘that’s him’, the witness may become ‘convinced of the accuracy of the identification’.
13.15 That proposal was ultimately rejected in recognition that it may weaken the force of sound identification evidence. There will be cases where the eyewitness can properly give more positive evidence, and such a limitation would prevent the witness from doing so. However, the radical distinction between, and different legal approach to, evidence of resemblance and evidence of positive identification are largely eradicated under the Acts. Notably, both forms of evidence attract a judicial direction under s 116.
13.16 The fact that evidence both of positive identification and of resemblance is subject to the admissibility requirements in Part 3.9 does not detract from the principle that the weight to be given to the evidence, once admitted, is a question for the tribunal of fact. Thus, a fact finder may give less weight to eyewitness evidence that is expressed in uncertain terms or where the witness is less certain of his or her testimony.
Identification and DNA evidence
13.17 Part 3.9 of the uniform Evidence Acts was adopted to respond to the difficulties with eyewitnessidentification 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.
13.18 Despite this, the definition of ‘identification evidence’ in the uniform Evidence Acts is broad. It has been suggested that the definition may inadvertently encompass evidence based on forensic identification techniques, such as DNA evidence and fingerprint evidence. If this were the case, the admissibility of these forms of evidence would be subject to the requirements in Part 3.9, including the holding of an identification parade before the evidence could be admitted under s 114, and a judicial direction to the jury under s 116.
Submissions and consultations
13.19 It was asked in IP 28 whether the definition of identification evidence in the uniform Evidence Acts inadvertently encompasses DNA and fingerprint evidence and, if so, whether this position should be remedied. In DP 69, the Commissions concluded that the definition of identification evidence in the Acts does not extend to DNA and fingerprint evidence, and that no amendment is necessary.
13.20 Submissions and consultations in response to IP 28 were varied. The New South Wales Public Defenders Office (NSW PDO) submits that the suggestion that the definition of ‘identification evidence’ covers DNA evidence and fingerprint evidence is ‘ingenious’ but highly unlikely to be accepted by the courts.
13.21 However, another view is that much would depend on the manner in which the evidence is presented in court. The Office of the Director of Public Prosecutions (NSW) (NSW DPP) submitted that, as it would be clearly inappropriate to give directions under s 116 of the uniform Evidence Acts for this type of evidence, the position should be placed beyond doubt by expressly excluding DNA and fingerprint evidence.
13.22 The Law Council of Australia (Law Council) stated that the admissibility of DNA evidence raises complexities which should be dealt with outside Part 3.9 of the uniform Evidence Acts. The Law Council also submitted that the Commissions should consider extending the protection provided by Part 3.9 ‘beyond visual identification by witnesses’.
13.23 In response to DP 69, the Office of the Victorian Privacy Commissioner states that the definition of identification evidence is likely to include fingerprint and other readily identifiable biometric data. It states that it is still open to the courts, if presented appropriately, to accept such biometrics as ‘identification evidence’.
13.24 Another view expressed is that DNA evidence would fall within the definition of ‘identification evidence’ as the wording of the definition is quite broad. The commentator notes that a statement that a person has the same DNA profile as the offender is, in effect, a statement of ‘resemblance’. However, while currently DNA and fingerprint evidence requires a person to make an ‘assertion’ as to resemblance (by asserting the likeness between the data collected and the defendant’s profile), this may not always be the case. He states that it may not be problematic to allow DNA evidence to be admitted with a warning under s 116, but notes that the problem, for now, is largely confined to conjecture.
The Commissions’ view
13.25 In the Commissions’ view, the definition of identification evidence in the uniform Evidence Acts does not, and was not intended to, cover DNA or fingerprint evidence used in identification. The Commissions maintain the view, expressed in DP 69, that no change to the definition of identification evidence is necessary. There are two reasons for this.
13.26 The first relates to the intention and policy rationale behind Part 3.9 of the uniform Evidence Acts. The discussion in previous ALRC Reports makes it clear that the identification provisions in Part 3.9 were tailored to respond to specific problems raised by the fallibility of human perception and memory in eyewitness identification evidence, by requiring the police to adopt certain techniques to ensure that such evidence is as reliable as possible. At the time of the previous Evidence inquiry, DNA technology was not widely available; however, the use of fingerprint evidence was common. Despite this, the discussion in the Reports is limited to issues raised by eyewitness identification evidence, as opposed to identification through forensic procedures.
13.27 Moreover, it seems clear that the structure of Part 3.9, in requiring an identification parade to be conducted as a precondition (subject to certain exceptions) to the admission of other eyewitness identification evidence, would be absurd and illogical if applied to forensic identification evidence.
13.28 Secondly, it is arguable that, when read literally, the definition of ‘identification evidence’ does not encompass DNA, fingerprint and other forensic identification procedures. It would be unusual for a witness, who is outlining the findings of a successful match of forensic identification materials, to give evidence in the form of an assertion along the lines required by the definition: namely, that based on what the witness ‘saw, heard or otherwise perceived’ at the place and time of the offence, the defendant resembles a person who was at or near a place where the offence took place, at the time the offence took place. Rather, experts in DNA and fingerprint analysis make a comparison between samples obtained at the crime scene and samples obtained from the defendant and express opinions about the degree of similarity between the samples. The prosecution then invites the judge or jury to accept the evidence and draw the inference from it that the defendant was in fact present at or near the place concerned.
13.29 Further, the definition of identification evidence specifically requires an assertion by a ‘person’. This has been said to exclude ‘evidence arising from an identification made by a tracker dog or a machine-based identification, such as the tender of security camera photos’. An analogous situation exists with respect to forensic procedures, particularly DNA evidence, which require the use of machinery such as thermal cyclers and chemical primers and reagents to produce a DNA profile. The fact that a person may be called on to give meaning to the forensic evidence before the court, and draw a correlation between that evidence and the defendant’s profile, has as yet not been enough to render that expert’s statement an ‘assertion by a person’ for the purposes of the definition. In the Commissions’ view, it is not such an ‘assertion’.
13.30 There is no judicial authority directly on this point. This is consistent with the view that, despite some academic commentary, the problem is likely to be confined to conjecture.
13.31 Although Part 3.9 of the uniform Evidence Acts does not regulate the admissibility of forensic identification procedures, the Commissions acknowledge the need for controls on the admissibility of such evidence. Currently, this occurs outside the scope of the uniform Evidence Acts. The admissibility of DNA evidence is regulated by Commonwealth, state and territory forensic procedures legislation, such as Part ID of the Crimes Act 1914 (Cth) (Crimes Act).Section 23XX of the Crimes Act provides that evidence obtained from a forensic procedure (such as taking a DNA sample) is inadmissible if there has been a breach of, or failure to comply with, its provisions in relation to the forensic procedure or in relation to recording or use of information on the DNA database system.
13.32 The court has a discretion to admit the evidence if it is satisfied, on the balance of probabilities, of matters that justify its admission in spite of the non-compliance; or if the person who is the subject of the forensic evidence does not object to its admission. However, these exclusionary provisions do not apply to DNA evidence obtained outside the framework of Part ID—for example, a crime scene sample or an informally obtained sample. In that case, admissibility will be determined under the uniform Evidence Acts or the other evidence laws of the relevant jurisdiction.
13.33 In the joint report of the ALRC and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council, Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96), the ALRC and AHEC noted concerns that, due to the highly probative nature of DNA evidence, judges might tend to exercise their discretion in favour of admission rather than properly balancing each of the relevant interests, including the privacy of the accused. This would undermine the value of the protection intended by forensic procedures legislation. Therefore, the ALRC and AHEC recommended that the Commonwealth amend the Crimes Act to provide that, with the exception of crime scene samples, law enforcement officers may collect genetic samples only from: (a) the individual concerned, pursuant to Part ID; or (b) a stored sample, with the consent of the individual concerned (or someone authorised to consent on his or her behalf), or pursuant to a court order.
13.34 The proposed changes mentioned above, and the questions about other controls on the admissibility of forensic identification procedures, go beyond the scope of the current Inquiry. For the purposes of the uniform Evidence Acts, the Commissions maintain the view that Part 3.9 does not apply to DNA, fingerprint or other forensic identification evidence, and that no amendment to the statutory definition is required.
Exculpatory identification evidence falling outside statutory definition
13.35 Visual identification evidence that is exculpatory of the accused does not come within the definition of ‘identification evidence’ in the Dictionary of the Evidence Act 1995 (NSW). The reason for this is that the definition of identification evidence requires an assertion that the accused was or resembles a person present or near the place and time of the commission of the offence in question. Evidence that the accused was not at the scene at the relevant time is thus beyond the scope of the definition. Therefore, s 116, which requires directions to be given to a jury only where ‘identification evidence’ (as defined in the Acts) has been admitted, does not apply.
13.36 The issue is thus whether forms of identification evidence falling outside the scope of the definition in the uniform Evidence Acts, but which may nonetheless be unreliable, are subject to any of the Acts’ controls on admissibility.
13.37 Section 165 of the uniform Evidence Acts empowers a judge to issue general warnings to juries about evidence ‘of a kind that may be unreliable’. Section 165(1) provides a non-exhaustive list of types of evidence which may attract a warning. ‘Identification evidence’ is covered in s 165(1)(b) and so may attract a warning under the section.
13.38 In R v Rose, Wood CJ at CL and Howie J held that although s 165(1)(b) refers specifically to ‘identification evidence’, there is nothing to preclude a general unreliability warning under s 165 being given with respect to visual identification evidence that may be unreliable, but which falls outside the scope of the definition of ‘identification evidence’ in the Acts. Such evidence includes visual identification that is exculpatory of the accused. Their Honours stated that visual identification evidence of a particular person is no more reliable because the person being identified is not the accused. They rejected the conclusion of Smart AJ that, because the section specifically refers to ‘identification evidence’ in s 165(1)(b), it was intended that the section would not apply to other kinds of evidence of visual identification.
13.39 The Court in Rose noted that trial judges have a discretion to decide whether or not to give a warning under s 165. They stated that in circumstances where identification evidence favours the accused, there would be good reasons for the trial judge to alter the content of the warning to make it appropriate to the case (for example, there would be no reason to warn of the dangers of wrongful conviction).
Submissions and consultations
13.40 It was asked in IP 28 whether there is concern about the application of the uniform Evidence Acts to identification evidence that is exculpatory of the accused, as outlined above in Rose. In DP 69 the Commissions concluded that the current approach to exculpatory identification evidence is adequate and proposed no amendment.
13.41 In response to IP 28, the NSW PDO, while not proposing any amendment to s 165, was critical of the decision in Rose. It said that Rose, in holding that a s 165 warning can be given to exculpatory eyewitness identification evidence, does not sufficiently take into account the fact that exculpatory identification evidence ‘needs only to raise the possibility of a mistake, whereas identification evidence tendered by the Crown needs to affirmatively prove that the accused was the offender’.
13.42 Another submission considered that the relevant provisions of the uniform Evidence Acts, as interpreted in Rose, are adequate and do not require amendment.
The Commissions’ view
13.43 The Commissions maintain the view, expressed in DP 69, that the approach to exculpatory identification evidence as outlined in Rose is adequate.
13.44 As noted in Rose, visual identification evidence that is exculpatory of the accused may be no more reliable than evidence that is inculpatory of the accused, and is subject to the same concerns relating to the fallibility of human recollection and perception. The fact that the evidence is exculpatory should not mean that all concerns as to reliability of this type of evidence ought properly to be disregarded. The practical burden on the defendant is only to establish ‘reasonable doubt’, which is a lesser onus than that of the prosecution. However, this provides no justification for adopting a less rigorous approach to the way in which the defendant proves facts which may contribute to that ‘reasonable doubt’. It is just as important as for the prosecution that the defendant be required to meet exacting standards in adducing evidence so as to ensure the reliability of all the evidence before the court.
13.45 The application of a s 165 warning to exculpatory identification evidence achieves an appropriate balance between respecting that the burden of proof in criminal trials rests with the Crown, and preserving the public interest in the conviction of the guilty. Unlike the warning in s 116, which must be given whenever the issue of identification is disputed, the warning in s 165 is discretionary. Thus, a trial judge need only issue a warning if he or she feels that the evidence in the particular case is unreliable. Moreover, the content of the warning in s 165 can be adapted to the type of evidence to which it relates. In practice, therefore, a judge can formulate a different warning in respect of exculpatory identification evidence than for inculpatory evidence because, for instance, it will not be necessary to warn the jury of risks of conviction in respect of exculpatory evidence.
13.46 For these reasons, the Commissions consider that the approach to exculpatory identification evidence as interpreted in Rose is appropriate and does not require amendment.
 J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [114.15]. See generally Smith v The Queen (2001) 206 CLR 650; R v Gee (2000) 113 A Crim R 376.
 J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), 383.
 Festa v The Queen (2001) 208 CLR 593, 598–599; Pitkin v The Queen (1995) 69 ALJR 612, 614.
 Pitkin v The Queen (1995) 69 ALJR 612, 615.
 Festa v The Queen (2001) 208 CLR 593, . See also S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.10000].
 Confidential, Consultation, Brisbane, 10 August 2005.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985).
 Ibid, .
 Ibid, .
 That is, eg, where the witness states ‘this person looks like the offender’ as opposed to ‘this person is the offender’.
 See Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [10.6].
 Ibid, Q 10–1.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [12.14].
 New South Wales Public Defenders Office, Submission E 50, 21 April 2005.
 I Freckelton, Consultation, Melbourne, 17 March 2005.
 Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.
 Law Council of Australia, Submission E 32, 4 March 2005.
 Office of the Victorian Privacy Commissioner, Submission E 115, 30 September 2005.
 J Gans, Submission E 59, 18 August 2005.
 See the discussion of the psychological research on the fallibility of human recollection in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), –. These issues are discussed further in [13.47] below in relation to identification parades and picture identification evidence.
 Ibid; Australian Law Reform Commission, Evidence, ALRC 38 (1987). Note also that all of the headings in these ALRC texts refer specifically to eyewitness identification.
 See Uniform Evidence Acts s 114. This aspect of the structure of the Acts is discussed in greater detail below.
 J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [114.15]. Therefore, the definition may not cover identification based on ‘facial mapping’ using data from facial recognition information technology. However, it has been said that the words ‘or otherwise perceived’ may be intended to cover ‘such unusual cases as identification by touch or identification by the sound of a person’s particular gait’: R v Adler (2000) 52 NSWLR 451, .
 See, Australian Law Reform Commission and Australian Health Ethics Committee, Essentially Yours: The Protection of Human Genetic Information in Australia, ALRC 96 (2003), [39.5].
 The corresponding state and territory statutes are: Crimes (Forensic Procedures) Act 2000 (NSW); Crimes (Forensic Procedures) Act 2000 (NSW); Forensic Procedures Act 2000 (Tas); Crimes Act 1958 (Vic); Criminal Law (Forensic Procedures) Act 1998 (SA); Criminal Investigation (Identifying People) Act 2002 (WA).
Crimes Act 1914 (Cth) s 23XX. Sub-section 5 provides a list of matters that a court may consider in making this decision. Sub-section 7 states that if the judge admits the evidence, he or she must inform the jury of the breach or failure to comply with the legislation and give whatever warning about the evidence the judge thinks appropriate in the circumstances. Evidence obtained as a result of a forensic procedure is not admissible in proceedings against a person if it is required to be destroyed under Part ID: Crimes Act 1914 (Cth) s 23XY.
 For example, DNA evidence obtained on the analysis of a cigarette butt discarded by the accused at a police station: see R v White  NSWSC 60.
 Australian Law Reform Commission and Australian Health Ethics Committee, Essentially Yours: The Protection of Human Genetic Information in Australia, ALRC 96 (2003), [44.102]. ‘At present, there are no safeguards to prevent covertly obtained biometrics from being used as identification evidence as illustrated in R v White  NSWSC 60’: Office of the Victorian Privacy Commissioner, Submission E 115, 30 September 2005.
 Australian Law Reform Commission and Australian Health Ethics Committee, Essentially Yours: The Protection of Human Genetic Information in Australia, ALRC 96 (2003), Rec 41–13.
R v Rose (2002) 55 NSWLR 701, –.
 See also Ch 8, in relation to hearsay evidence of identification.
 R v Rose (2002) 55 NSWLR 701, , .
 Ibid, .
 Ibid, .
 Ibid, –.
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 10–2.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [12.23].
 New South Wales Public Defenders Office, Submission E 50, 21 April 2005.
 Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.
 R v Rose (2002) 55 NSWLR 701, .
 Ibid, .
 See Dhanhoa v The Queen (2003) 217 CLR 1, .