This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

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. This has been strongly reinforced by a July 2020 decision of ACT Chief Justice Helen Murrell, (reversing a decision of Acting Chief Magistrate Glenn Theakston). That case involved charges of dangerous driving, drug-driving and dishonestly taking a motor vehicle. It also involved the supposed “100 per cent” certainty of a police witness about the identity of the offender.

Gooda v Burrows

The issue in the 2020 matter of Gooda v Burrows was whether the accused gentleman was the driver at the relevant time.Magistrate Theakston declared that he was satisfied beyond a reasonable doubt that the man was the driver. However, Chief Justice Murrell, thought differently, noting many factors that would have made correct identification difficult.

These factors included that:

  • There were three people in the vehicle;
  • The policeman had not clearly seen who was driving before the vehicle was stopped;
  • The three people exited the vehicle simultaneously, one from the driver’s door, and one each from the back doors;
  • It was dark;
  • The policeman did not write a description in his notebook of the male he said had exited the driver’s door;
  • The accused gentleman and a woman were apprehended. The third person, another male, was not;
  • Fingerprints matching the accused were found in the back of the car;
  • Fingerprints matching the woman were found on the rear-vision mirror;
  • DNA matching the woman was found on the driver’s controls;
  • CCTV footage suggested the woman may have been driving the vehicle 40 minutes before it was stopped;

Factors to consider when assessing identification evidence

The Chief Justice noted that the Evidence Act itself specifies in numerous places that identification evidence is “of a kind that may be unreliable”. Her Honour also noted that the leading academic text writer on evidence, Stephen Odgers, SC, has found several factors that need to be considered when looking at identification evidence, including:

(a) Whether the witness had any prior familiarity with the subject;

(b) That if a subject is from a different racial group to the witness, this may reduce the value of the witness’ identification evidence;

(c) The circumstances of the perception, including the period of perception, the type of attention, the distance from the subject, the lighting conditions and any stress experienced by the observer;

(d) The procedures adopted in relation to identification and whether they suggest, explicitly or implicitly, that the subject is the offender; and

(e) Any risk of “displacement” of perception, e.g.  by being told certain things or being shown certain things.

The Chief Justice’s findings

The Chief Justice found that the policeman had no prior familiarity with the accused; that the accused was Aboriginal and the policeman was presumably Caucasian; that the “period of perception was an instant” and that the policeman’s focus would have been split between the three people; and that the lighting was “not ideal”.

It is not clear whether there was a risk of displacement, with the Chief Justice saying it might be relevant that the accused was the only male who was apprehended.

In conclusion, Her Honour found, “The combination of the above considerations, but particularly the brevity of the observation of a person of whom [the policeman] had no prior knowledge, and the obvious opportunity for there to be confusion between the two persons who exited the right side of the vehicle (one of whom was [the woman], a person who had very shortly beforehand been the driver of the vehicle) creates a reasonable doubt about the appellant’s guilt.

Her Honour allowed the appeal, setting aside the verdicts of guilty and substituting verdicts of not guilty.

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