Identification

Judges know that identification is the very best example of evidence where a witness might be honestly mistaken – but the risk of that mistake will not be obvious to many.

Identification evidence is a perhaps the best example of evidence that requires the court, in its experience, to assist a jury in assessing the evidence.

Persons inexperienced in the criminal justice system do not have the perspective on identification evidence that judges do. Judges know that identification is the very best example of evidence where a witness might be honestly mistaken – but the risk of that mistake will not be obvious to many.

This is why the court in Domican v R [1992] HCA 13 set out the nature of the warning the judge needs to give:

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

A warning in general terms is insufficient

The attention of the jury "should be drawn to any weaknesses in the identification evidence"

The jury must have the benefit of a direction which has the authority of the judge's office behind it

 

Domican

Domican v R [1992] HCA 13

“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 formulaBut it must be cogent and effectiveIt must be appropriate to the circumstances of the case A warning in general terms is insufficient… The attention of the jury "should be drawn to any weaknesses in the identification evidence"… 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.”