Area of Law – Evidence

An Article about Identification evidence in criminal cases

Identification evidence in criminal cases is a complex area of the law. Identification evidence is often of crucial importance – in every case the prosecution must prove that it was the accused person who committed the crime alleged.

Where there is little or weak identification evidence, cases should be examined very closely to see whether the prosecution has sufficient evidence to prove its case. If you are accused of a crime in which the identification evidence is not strong, you should call a specialist criminal defence lawyer for advice. Many cases can be successfully defended by challenging the alleged identification.

Those who have been practising law for a long time know that there are often honest witnesses who swear that they have seen someone do something. Such witnesses have an honest belief as to what they saw, and they are decent citizens. The only problem is – they may be wrong.

A witness who has seen a person for a very short time (seconds perhaps) years in the past, can easily be wrong about what they saw. Some witnesses, once they believe they are certain about something can not be swayed from that position. It does not mean they are telling the truth.

There are many things that can lead to a false identification.

A witness can see a person in the vicinity of an offence, in similar clothing to the person who committed the offence, and jump to a conclusion. At other times, witnesses are shown a photo of a person by the Police, and then, when they identify that person as the offender are really just identifying the person they saw in the photo.

Depending on the type of evidence, a judge is often required to warn a jury that there is a special need for caution prior to accepting identification evidence. The judge is also required to explain the reasons for the caution required.

Distinctions can be drawn between different categories of identification evidence.

Positive identification evidence is evidence by a witness that they recognise a particular person as someone they saw on a prior relevant occasion. Most cases of positive identification involve the identification of a person previously unknown to the witness.

Positive identification evidence can be direct or circumstantial. It is direct evidence when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question (e.g. evidence that the accused was seen killing the victim). It is circumstantial evidence when its acceptance provides the grounds for an inference that the accused committed the crime in question (e.g. evidence that the accused was seen leaving the scene of the crime).

Recognition evidence is evidence by a witness that they recognised a person at the time the crime was committed. Recognition evidence differs from other forms of identification evidence, in that the witness has previous knowledge of the person identified. This will often alleviate the need for a subsequent formal identification process. The need to give a direction and the nature of any direction given differs with recognition evidence.

Similarity evidence is evidence that asserts that the general appearance, or some particular characteristic of the accused, is similar to that of the person seen on the previous occasion that is relevant to the charge. It may, for example, be evidence of age, race, stature, colour, voice or a distinctive mark or gait. Similarity evidence can assist in identifying an offender, but it is not a type of identification evidence, because the witness does not actually identify the accused as the person previously observed. They merely describe the person observed in general terms or note that the accused “looks like” or “sounds like” the offender.

Even if multiple witnesses give evidence that the accused is similar to the offender (making it more likely that the evidence is reliable), similarity evidence never positively identifies the accused as the offender. It will always only be evidence that the accused resembles the offender.

Comparison evidence is evidence comparing two people or items which do not require particular expertise to compare. It could, for example, involve a comparison of the voice of the accused with a voice on a tape, or a comparison of the accused in the dock with a person viewed on security camera footage.

Comparisons can be performed by the jury or by a non-expert witness with relevant knowledge. Comparison evidence will be a type of identification evidence, if the evidence posits that the two items are identical. If, however, the evidence simply asserts a resemblance between the two items, it will be a form of similarity evidence.

Negative identification evidence can be evidence identifying someone other than the accused as the offender, or evidence that the accused is not the offender.

Some case law about identification
It is sufficient to state that in common with any other form of evidence that the prosecution propose to adduce in a criminal trial, it can be excluded in the exercise of discretion when its prejudicial value can be seen to outweigh its probative value.

R v Akgul [2002]

When it is admitted:

“the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.”

Domican v. The Queen (1992) 173 CLR 555

Displacement effect
Mason J in Alexander v R refers to is as “the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.


Date: 01/09/2009