Identification Evidence (Qld)

In criminal matters, the prosecution must prove its case beyond a reasonable doubt. This means adducing  evidence to prove that the accused committed the offences with which they are charged. This often requires the prosecution to prove that it was the accused (and not someone else) that committed the offence alleged. In order to do this, they may be required to lead ‘identification evidence’. There are multiple ways in which the prosecution can lead identification evidence, which are discussed below.

Types of evidence

The prosecution case in a criminal matter can include a variety of types of evidence, including:

1. Witness evidence;
2. CCTV footage;
3. Voice evidence;
4. Photo boards;
5. Medical evidence;
6. DNA evidence; and
7. Expert evidence.

Real evidence

One common type of identification evidence is real evidence, which includes DNA, blood samples and fingerprints. When a crime is committed, the police may forensically examine the scene and take samples from it, in an attempt to find the perpetrator. Once they have a suspect, they may require them to provide DNA, blood samples or fingerprints.

Closed Circuit Television (CCTV)

When an offence is committed, the police will ascertain whether there is any CCTV available. This may show the offence being committed and reveal the identity of the offender, or it may show persons within the area at the time of the offence.

If the CCTV records the actual offence and the offender is recognisable from the footage, the prosecution will then lead evidence to demonstrate that the person in the CCTV footage is the accused.

If the CCTV shows persons in the area, but not the commission of the offence, the prosecution will need to attempt to link those persons to the offending.

Voice Recordings

Voice recordings are another type of identification evidence. They may be in the form of voicemail messages, taped conversations or videos, amongst other things. The prosecution in a criminal trial may lead voice recordings as evidence and suggest that the accused is the person whose voice is recorded.

It is inherently difficult to identify a person from their voice, as many voices sound similar. A judge presiding over a jury trial may give warnings to the jury regarding the difficulties with voice evidence and caution the jurors about convicting on that evidence alone. However, it is nonetheless a matter for the jury to decide whether the voice recorded is that of the accused.

Photo Boards

The police may create a photo board for eyewitnesses to use to identify the alleged perpetrator. This is done by placing photographs of 12 persons on a board, which the witness views and advises police if they believe any of them committed the offence.

Of the 12 persons, one of them must be the accused and the remaining 11 must be of similar appearance. The police must not prepare a photo board where the other persons photographed look very different to the accused, or this could lead to a miscarriage of justice.

There can be issues with this type of evidence and the defence should consider its admissibility carefully.

In the case of Alexander v The Queen (1981) 145 CLR 395, Stephen J made the following comments in relation to photo boards.

“When identification is attempted with the aid of photographs, there are introduced peculiar difficulties, due to the various ways in which photographic representations differ from nature: their two dimensional and static quality, the fact that they are often in black and white and the clear and well lit picture of the subject which they usually provide.”

Accordingly, a judge presiding over a jury trial in which photo board evidence is given may give warnings to the jury in relation to that evidence.

Oral evidence

Another common type of identification evidence comes in the form of oral evidence from witnesses. These are persons who the police believe were witnesses to the alleged offending and can attest to who they saw commit the offence.

When police prepare the initial brief of evidence against the accused, the police will prepare a written and signed statement of all witnesses. At trial, the prosecution witnesses will be required to give evidence in the form of evidence in chief, led by the prosecution, and cross-examination by the defence. They may be asked specific questions as to the appearance of the offender, and whether they recognise the offender in court.

Challenging identification evidence

An accused can challenge identification evidence at trial. For example, they might say that the person captured on CCTV footage was not them, or that the witness wrongly identified them. If this occurs, the presiding judge of a jury trial will give the jury a warning about convicting on identification evidence alone, noting that genuine mistakes can be made.

The judge will warn the jury to scrutinise the identification evidence by considering:

1. the circumstances in which the identification of the witness was made;
2. the time the witness had to see the offender;
3. how far the perpetrator was from the witness;
4. the lighting;
5. whether the witness and perpetrator were known to one another;
6. any reason that the witness recalls the particulars of the offender; and
7. any other thing the judge believes relevant.

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