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Problematic Identification Evidence

One of the grounds on which a defendant can appeal against a decision in a criminal matter is on the basis of problematic identification evidence. Correct identification of an offender is often crucial in a contested criminal matter and can often hinge on the testimony of a single witness. However, sometimes issues can arise as to the reliability of identification evidence and whether it formed a proper basis for a finding of guilt. This is often because jury directions given by the judge as to identification evidence were inaccurate or incomplete.

What Happens When A Person Is Wrongfully Identified?

Where a person is convicted on the basis of identification evidence, a careful examination of the strength of the identification evidence and the directions given by the trial judge to the jury is warranted. Where this is not done correctly, this may be a powerful ground of appeal.

In some cases, the only evidence that the Crown relied on to establish that the accused is the person who committed the offence is the identification of the accused by a single witness. This witness may claim that the identification is based on ‘unique’ characteristics, such as tattoos, distinctive clothing; or a particular accent, when heard speaking certain words.

In such a case, it might be argued that the identification evidence was unreliable or unable to establish the guilt of the accused person, meaning that the verdict was unreasonable. If such an appeal is brought, the Court of Criminal Appeal will likely consider factors affecting the reliability of that evidence, such as:

  • length of time the witness was able to hear and/or see the person identified;
  • number of words spoken;
  • distance between the witness and the person at the time of identification;
  • environmental factors such as lighting;
  • affectation by drugs and/or alcohol;
  • the reliability and credibility of the witness in relation to other evidence they gave.

What Juries Must Consider

Juries must also be instructed to exercise special caution before accepting identification evidence. If a trial judge fails to provide appropriate instruction in relation to the potential dangers or problems with identification evidence, this may be sufficient for the Court of Criminal Appeal to declare that there has been a miscarriage of justice and order a re-trial.

In the past, the Court of Criminal Appeal has unanimously held, in relation to the dangers of voice identification evidence that,

The identification of a voice is notoriously liable to be mistaken.

If there are uncertainties with identification evidence the Court of Criminal Appeal may be led to conclude that a (hypothetical) jury, would have entertained a reasonable doubt as to the guilt of the accused and, accordingly, that the original verdict was made in error. If this is the case, the appellant will be acquitted on appeal.

If you require legal advice in relation to problematic identification evidence appeals or any other legal matter please contact Armstrong Legal or phone us on 1300 038 223.

Trudie Cameron

This article was written by Trudie Cameron

Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. She practices in both NSW and the ACT. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and...

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