The Problems with Identification Evidence

Identification evidence is evidence given by a witness that the accused is, or resembles, the person who committed the offence they have been charged with. Identification evidence that is given by a person who does not know the defendant is often said to be unreliable, which is why there are strict rules about when it can, and cannot be used in court. 

The law in relation to Identification evidence is set out in sections 114 and 115 of the Evidence Act 1995. 

Section 114 deals with visual identification evidence, which means identification evidence relating to an identification based wholly or partly on what a person saw (but does not include picture identification evidence). Typically speaking this kind of evidence arises when a witness says that they “recognised someone”.

When adduced by the prosecution, Visual Identification Evidence is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made, or

(b) it would not have been reasonable to have held such a parade, or

(c) the defendant refused to take part in such a parade,

and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

Section 115 deals with identification evidence via pictures and sets out rules as to how, what kind of pictures and and when pictures can be used in identification parades by police. 

Even if identification evidence is admissible in a matter, there are exclusionary provisions that might be able to be used to argue that the evidence should be excluded when its probative value is outweighed by the danger of unfair prejudice to the defendant (see section 137 of the Evidence Act). 

Being able to prove that an accused person is actually the one who committed an offence is obviously a crucial part of a prosecution case. A close examination of the prosecution evidence can sometimes reveal issues with identification which might lead to a significant issue for the prosecution. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.