In-court identification

13.93 In-court (or ‘dock’) identification is where a witness identifies the defendant in the courtroom or in the dock as being the perpetrator they saw at the scene of a crime. It is generally regarded as the most problematic of all forms of visual identification.^[119] Mason J noted in R v Alexander:

‘in court’ identification … is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock.^[120]

13.94 At common law, in-court identification is usually permitted once evidence of a prior out-of-court identification (usually by way of an identification parade or photographic identification) has been admitted.^[121] The in-court identification is used to reinforce the prior identification, which serves as the primary means of identification evidence in the case. Alone, and without a prior form of out-of-court identification, in-court identification is generally held to be of little probative value, although still admissible.^[122]

13.95 It has been suggested that there are some advantages of continuing to allow in-court identification—in particular the value of having a witness repeat his or her identification under oath.^[123] It is also part of the common law adversarial tradition to require the truth and credibility of all the evidence in a case to be put before the court to be assessed during the course of the trial itself.^[124]

13.96 In ALRC 26, the ALRC specifically discussed the problems associated with in-court identification evidence. It was suggested that special rules are needed to address both in-court and photographic identification.^[125] However, unlike photographic evidence, which came to have its own separate provisions for determining admissibility, in-court identification was subsumed within the general provisions in Part 3.9 and is not specifically referred to in the definition of ‘identification evidence’ in the uniform Evidence Acts. Nevertheless, it seems clear that the ALRC’s intention was to make those provisions applicable to in-court identification. For instance, it was stated in ALRC 26 that

the primary proposal was that no eyewitness identification evidence would be admissible for the prosecution—whether dock identification or evidence of an out of court identification—unless an identification parade had been held prior to the act of identification.^[126]

13.97 Despite initial arguments to the contrary, the New South Wales Court of Criminal Appeal has held on several occasions that s 114 of the Evidence Act 1995 (NSW) applies to in-court identification evidence.^[127]

Submissions and consultations

13.98 Question 12–1 in DP 69 asked to what extent in-court identification is used in practice and whether this a problem. It also asked whether Part 3.9 of the uniform Evidence Acts should be amended to make it clear that, subject to the exceptions set out in s 114(3), in-court identification is inadmissible.

13.99 The NSW PDO notes that, as currently drafted, Part 3.9 of the uniform Evidence Acts does not specifically address the question of in-court identification:

No doubt the drafters of this provision assumed that practitioners would take it as read that in court identification was impermissible. However this was not the case, and initially the Crown argued that ‘visual identification evidence’ did not include in court identification.^[128]

13.100 The NSW PDO states that the present wording of ss 114 and 115 is so complex and dense that it is not easy to ascertain the intention that, generally, in-court identification is not permitted.^[129] The NSW PDO submits that a new provision should be inserted into the uniform Evidence Acts, making it clear that in-court identification is inadmissible unless one of the exceptions in s 114 applies—that is, unless there was a prior identification parade or it would not have been reasonable to hold an identification parade.^[130] The NSW PDO notes that in-court identification is occasionally relied upon, stating that the author of the submission has conducted two appeals where it was eventually held that there had been impermissible in-court identification.^[131]

13.101 One judicial officer notes that in-court identification rarely occurs.^[132] However, it is suggested that if there is uncertainty, the Acts should be amended to put beyond doubt the fact that Part 3.9 applies to in-court identification.^[133]

13.102 The Law Society of New South Wales agrees that in-court identification rarely occurs in practice. However, it considers that, given the high degree of unreliability of in-court identification and the policy objectives of the uniform Evidence Acts in relation to identification evidence, Part 3.9 should be amended to make it clear that, subject to the exceptions in s 114(3), in-court identification is inadmissible.^[134]

13.103 Others suggest that the current definition of identification evidence clearly covers in-court identification and that no amendment is necessary.^[135]

The Commissions’ view

13.104 The Commissions’ view is that the definition of visual identification evidence in s 114(1) covers in-court identification. This position is supported by the intention of the ALRC as evidenced in ALRC 26,^[136] by the recognition of the notorious unreliability of in-court identification evidence,^[137] and by the broad wording of the definition of identification evidence in the Acts which has been construed on several occasions by the New South Wales Court of Criminal Appeal to include in-court identification.^[138] The Commissions also note submissions and consultations indicating that in-court identification rarely occurs in practice.

13.105 The provisions governing the admissibility of identification evidence in Part 3.9 therefore apply to in-court identification evidence. Thus, holding an identification parade will be a necessary precondition to the admissibility of in-court identification, unless it would not have been reasonable to hold such a parade or the defendant refused to take part in such a parade.^[139] If evidence of in-court identification is admitted, and the reliability of the identification is in dispute, the judge is required to give a warning to the jury that there is a special need for caution before accepting identification evidence, and to outline the reasons for that need for caution, both generally and in the circumstances of the case.^[140]

13.106 Currently, if it is unreasonable to hold an identification parade within the regime established in s 114, there is no obligation on the police to obtain another form of out-of-court identification in order for in-court identification to be admissible. This is in contrast with the common law, which stresses the importance of obtaining anyform of out-of-court identification before admitting in-court identification evidence.^[141]

13.107 In light of the extreme unreliability of in-court identification evidence, even as compared to other forms of visual identification, it is arguable that in the event that it would not have been reasonable to hold an identification parade, the police should be required to hold some other out-of-court identification procedure before evidence of in-court identification will be admitted. This could involve, say, photographic identification or another method that involves ‘picking out’ the accused from a number of different persons (such as identification of the accused in prison exercise yards or on the street).

13.108 However, while in many cases the police may seek to obtain this sort of evidence of their own accord, to require it within the context of admissibility would impose significant additional administrative obligations on the police. Given that these forms of identification are likely to be highly unreliable in themselves, the Commissions do not believe this should be required. The uniform Evidence Acts should retain the preference for holding an identification parade as the ideal pre-trial identification procedure before admission of in-court identification.

13.109 The Commissions consider that Part 3.9 of the uniform Evidence Acts adequately addresses the issue of in-court identification evidence and it does not require amendment.