Directions to the jury

13.83 Section 116 of the uniform Evidence Acts states:

(1) If identification evidence has been admitted, the judge is to inform the jury:

(a) that there is a special need for caution before accepting identification evidence; and

(b) of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) It is not necessary that a particular form of words be used in so informing the jury.

13.84 In Dhanhoa v The Queen, the High Court noted that, if read literally, s 116 could be taken to mean that a judge is always required to inform the jury that there is a special need for caution before accepting identification evidence whenever identification evidence has been admitted, even if the reliability of the evidence is not in dispute.[108]

13.85 The High Court found that to give s 116 a literal meaning would produce a consequence that is wholly unreasonable and stated that the requirement ‘is to be understood in the light of the adversarial context in which the legislation operates, and the nature of the information the subject of the requirement’.[109] So understood, the provision means that directions must be given only where the reliability of the identification evidence is disputed.[110]

13.86 In IP 28, it was asked whether s 116 of the uniform Evidence Acts should be amended to clarify that directions to the jury in relation to identification evidence are not mandatory.[111]

13.87 The NSW PDO stated that warnings about identification evidence under s 116 are ‘so fundamental that they should be given whether or not the accused’s counsel remembers to ask for them’ and so it opposes amendment of s 116.[112]

13.88 The NSW DPP submitted that s 116 should be amended to make it clear that directions under s 116 are mandatory only where the reliability of the identification evidence is disputed.[113] The Law Council of Australia noted that any ‘technical demand’ for a mandatory warning under s 116 can be dealt with simply ‘under appellate rules which make it clear that such a technical error cannot give rise to a substantial miscarriage of justice’.[114]

13.89 In ALRC 26, it was proposed that the warning now contained in s 116 be given only on the request of the accused.[115] This was seen as a compromise between the two alternatives, which were both deemed too extreme, of making the warning mandatory or entirely discretionary.[116] Moreover, the wording of the initial proposals indicated that the warning was only to be given where identification evidence was a substantial part of the prosecution’s case, again indicating an intention that the warning was not to be mandatory in all cases involving identification evidence.[117] It was also noted that almost all cases require identification of the suspect to some degree even if the issue of identification is not contested, and that to require a solemn warning from the judge in those cases where identification is not in dispute would be confusing and counterproductive.[118]

13.90 The decision in Dhanhoa thus returns the operation of s 116 to how the ALRC originally intended it to operate. The option remains however to amend s 116(1) by, for instance, adding after the words ‘if identification evidence has been admitted’ the words ‘and the reliability of that evidence is in dispute’.

13.91 The Commissions consider that the decision in Dhanhoa is clear and has settled the law on this issue. Furthermore, amending the section could create problems of interpretation in the future. For example, it could suggest that other provisions in the uniform Evidence Acts, which are assumed to be triggered only in the event that the evidence is in dispute, need to be amended to include similar riders to clarify their operation. This is part of the assumption underlying the adversarial system, and should not need to be enumerated in every instance.

13.92 Therefore, the Commissions maintain the view expressed in DP 69 that the operation of s 116, read in light of Dhanhoa, is settled law and does not require amendment.

[108]Dhanhoa v The Queen (2003) 217 CLR 1, [19].

[109] Ibid, [22].

[110] Ibid, [22].

[111] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 10–4.

[112] New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[113] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[114] Law Council of Australia, Submission E 32, 4 March 2005.

[115] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [841], [843].

[116] Ibid, [841], [843].

[117] Ibid, [841], [843].

[118] Ibid, [843].