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Identification Evidence In Australia

identification evidence in Australia

Identification evidence plays a crucial role in the criminal justice system of any country, including Australia. It serves as a cornerstone for establishing the guilt or innocence of a defendant.


The uniform Evidence Acts limit the application of the identification evidence provisions by defining ‘identification evidence’ as any statement made by someone stating that the defendant either was or looks like a person who was present at or near the location where the offence for which the defendant is being tried took place, or where an act related to that offence occurred. This definition covers visual, auditory, or any other form of resemblance between the defendant and the person in question, that is, evidence identifying an accused.

What Is Identification Evidence?

Identification evidence refers to the testimony or material presented in court that aims to establish or negate the identification of a person involved in a criminal act. It is instrumental in linking a suspect to a crime scene or connecting them with the victim. This type of evidence often carries significant weight and can greatly influence the outcome of a jury trial.


The guidelines and cautions regarding evidence of identification are controlled by sections 116 and 165 of the Evidence Act 1995 (referred to as “the Act”). However, the actual content of these guidelines is mostly derived from previous legal cases, like Domican v The Queen (1992).


Section 116 mandates that the jury must be instructed about the importance of being cautious when evaluating identification evidence, along with the reasons for exercising caution. Section 165(1)(b) requires that a warning be provided whenever requested, specifically in relation to “identification evidence”. Below are the identification evidence examples.

Eyewitness Testimony


Eyewitness testimony is perhaps the most common form of identification evidence. It involves a person who claims to have seen an event or a person and can identify them in court. However, it’s important to recognise that eyewitness testimony can be fallible due to issues like stress, poor lighting, or the passage of time, leading to misidentifications.


Photographic Evidence


Photographic evidence involves the use of images or photographs to identify a suspect, victim, or a scene of crime. This may include CCTV footage, photographs taken at the scene, or images from other sources that can help establish or negate the identity of individuals involved.


Visual identification evidence is generally considered more dependable compared to picture identification evidence. According to Section 115 of the Act, picture identification evidence will not be deemed admissible if:


  • The examined pictures imply that they depict individuals in police custody; or
  • At the time of picture examination, the defendant was in custody, and the picture used was captured before the defendant’s apprehension, unless the defendant’s appearance has undergone a substantial transformation.
  • The defendant was in custody and an identification parade could have been conducted.

Fingerprint Evidence


Fingerprint analysis is a highly reliable method of identification, which involves reports provided by expert witness. Each person’s fingerprints are unique, and matching prints found at a crime scene with those of a suspect can be compelling evidence of their presence.


DNA Evidence


DNA analysis has revolutionised criminal investigations and DNA expert evidence towards identification. It involves comparing the DNA found at a crime scene with that of a suspect or a database of known profiles. A match can conclusively link an individual to a crime, while a mismatch can exclude them as a suspect.


Voice Recognition


Voice recognition technology is becoming increasingly sophisticated. It can be used to identify a suspect based on their voice patterns, particularly in cases involving recorded conversations or phone calls. Sometimes, this type of evidence can be inadmissible evidence.


Line-ups and Show-ups


In a line-up, a witness is asked to identify a suspect from a group of people, while a show-up involves presenting a single individual for identification. Both methods are used by law enforcement to test a witness’s ability to recognise a suspect.


The Australian Law Reform Commission characterises identification parades as the most dependable form of visual identification evidence. Alternatives to an identification parade, such as having the witness observe the suspect in isolation and make a positive visual identification, carry a significant risk of bias.


The court will consider several factors when determining if it was reasonable to conduct an identification parade, including:


  • The type and seriousness of the offence in question.
  • The significance of the evidence.
  • The feasibility of conducting an identification parade, taking into account factors such as:
  • Whether the defendant cooperated in the parade, and if not, the manner, extent, and reason for the non-cooperation.
  • Whether the identification occurred at or around the time of the offence.
  • The appropriateness of holding an identification parade, considering factors such as the relationship (if any) between the defendant and the person making the identification.

Significance of Identification Evidence in Australian Courts

In Australia, as in many other countries, identification evidence holds substantial importance in legal proceedings. It is treated as a form of direct evidence, which means it directly proves a fact without the need for inference or interpretation.


However, the Australian legal system is also cognisant of the potential unreliability of identification evidence. Courts take measures to ensure fairness, such as instructing juries on the limitations of eyewitness testimony and considering factors that may affect its accuracy.

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Legal Advice

While identification evidence is invaluable, it is not without its challenges. Factors like the witness’s stress, distance from the incident, and the time elapsed can significantly impact the reliability of the identification. Furthermore, cases of mistaken identity have led to wrongful convictions, emphasising the need for caution in relying solely on this form of evidence.


In cases where identification evidence supports the defence, regardless of whether it is presented by the prosecution or not, the Crown may request a caution regarding the overall precariousness of such evidence under section 165. Nevertheless, this caution should be delivered judiciously and in a restrained manner, aiming to provide the jury with a clear grasp of the potential lack of reliability associated with this type of evidence.


Identification evidence forms a critical part of criminal investigations and criminal trials in Australia. It serves as a means to link individuals to criminal acts and plays a pivotal role in determining guilt or innocence. However, it is crucial to recognise the potential for error and take steps to minimise the risk of misidentification. In doing so, the Australian legal system can ensure that justice is served accurately and fairly.


If you have been charged with a serious indictable offence in NSW and require legal advice, contact one of our sexual assault lawyers in Sydney. Our leading criminal defence lawyers can review your case carefully and provide you legal advice on your options. We can provide free legal advice for up to 15 minutes on the phone.

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