18. Identification Evidence — ss 113–115 (Vic)

Scope and currency

Cheat sheet · Evidence Act 2008 (Vic) Pt 3.9 · Jury Directions Act 2015 (Vic) Pt 4 Div 4 · Crimes Act 1914 (Cth) ss 3ZM, 3ZO

History: ss 113–115 replaced the common law — a major change responding to High Court decisions on how "seductive", but unreliable, identification evidence is:

• Alexander v The Queen (1981) 145 CLR 395 (ID evidence "notoriously uncertain" [426]; parades the "safest and most satisfactory way" [399], photographs second-best); and

• Domican v The Queen (1991) 173 CLR 555. Under the UEA the common law preference for parades becomes a requirement.

s 113: Pt 3.9 applies only in criminal proceedings.

Gate 0 — Is it "identification evidence"? (Dictionary) (1QID)

GATE 0 The Dictionary definition

"An assertion that the accused is, or resembles, a person present at or about the time that the crime […] was committed" (Evidence Act, Dictionary). It includes: visual and other identification ("visually, aurally or otherwise"); both positive identification and resemblance evidence ("was or resembles/sounds like"); both in-court and out-of-court assertions (the latter subject to the hearsay rules). There must be a link to the accused. "The person in the CCTV looks like the person who did it" is not enough — it must include "and that person is/looks like the accused". Statements like "the person I saw [in the picture, at the line-up, in the back of the police wagon, at the servo the day later] is / looks like the person who committed the crime". → Within the definition: the s 114 / s 115 gates below apply. s 114 applies to in-court identification — a parade is a necessary precondition to admissibility of in-court ID (unless exceptions apply); if an exception applies, police need not obtain another out-of-court identification. → Outside the definition: Pt 3.9 does not apply — analyse as relevance / opinion / discretions (see the Smith gate and voice ID).

What is NOT identification evidence

Evidence	Why not	Authority
Description of the offender ("he had red hair"); victim's description of the rapist; introduced to her as "Adam"	A description without the further assertion that the accused is / resembles that person	Trudgett v The Queen (2008) 70 NSWLR 696
Description of what the offender was wearing	Not an assertion linking the accused	DPP v Bass (a pseudonym) [2016] VSCA 121
Non-human evidence (e.g. CCTV footage itself)	Not an "assertion by a person"; treated as a document (s 48)	Dictionary
Persons other than the defendant; things/objects (cars, clothing, weapons)	Definition is confined to the accused	R v Clout (1995) 41 NSWLR 312; R v Lowe (1997) 98 A Crim R 300
Forensic identification — DNA, fingerprints	Not assertion-based identification; expert opinion normally in report form	Allan v R [2017] NSWCCA 6
Voice identification (opinion that a recorded voice is the accused)	Dealt with separately as opinion evidence — see Voice ID section	Tran; Khier; Teague
Exculpatory identification (accused is not the perpetrator)	Not captured — raises the problem of unreliable exculpatory ID; consider directions under Jury Directions Act 2015 s 36	1QID notes
Police/others recognising the accused in CCTV, not having been at the scene	No perception at the scene; and see relevance gate below	Smith v The Queen (2001) 206 CLR 650
RELEVANCE The Smith relevance gate (1RELID)
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50: positive identification adduced as opinion evidence of two police officers (whom did not witness the offending) was not relevant — at the point the jury had to decide whether the person in the surveillance footage was the accused, the jurors were as well placed as the officers. The officers' conclusion was "based only on material that is not different in any substantial way from what is available to the jury" — so it could not rationally affect the jury's assessment. Not relevant → not admissible; no other admissibility provision arises. → Where ID evidence is relevant: the witness possesses a distinct advantage over the jury—such as extensive prior familiarity with the accused's appearance, or specialised knowledge enabling them to interpret the images (Smith; R v Drollet [2005] NSWCCA 356 at [35], [46]) — e.g. s 79 (opinion), and exclusion under ss 135–137. → Specialised comparison: The Distinction Between* Honeysett *and Meade Honeysett v The Queen (2014) 253 CLR 122 "body mapping" from CCTV excluded — not s 79 specialised knowledge. An anatomist attempted to identify an offender from CCTV by comparing body shape, posture, and "body mapping" against images of the accused. HCA ruled the evidence inadmissible under section 79(1). The Court found that human characteristics like posture are not standardised, measured, or statistically analysed in a way that allows for reliable anatomical comparison. The anatomist's opinion was merely a subjective, lay observation of the footage that gave the "unwarranted appearance of science" to the prosecution's case, rather than an opinion genuinely based on his specialised knowledge of anatomy. CONTRAST Meade v The Queen boot-characteristics comparison admitted. By contrast, in Meade the Vic CoA admitted evidence from an experienced boot manufacturer who compared footwear seen on CCTV to the characteristics of Redback boots. The Court drew a sharp distinction between the unstandardised human characteristics in Honeysett and the identification of manufactured objects. Manufactured items are the product of human endeavour and possess distinct, reliable features known to industry experts. Because the jury lacked the specialised knowledge to identify these specific boot characteristics (such as stitching and elastic gussets), the expert's evidence genuinely assisted them and was wholly based on his industry experience. Furthermore, the expert did not positively identify the boots as belonging to the accused, but merely stated the features were "consistent with" a particular brand, avoiding the overreach seen in Honeysett.

s 114 — Exclusion of visual identification evidence (1VID)

s 114 The rule and every subsection

s 114(1): "visual identification evidence" = identification evidence based wholly or partly on what a person saw, excluding picture identification evidence. s 114(2): visual ID adduced by the prosecutor is not admissible unless: - an identification parade that included the accused was held before the identification was made; or - it would not have been reasonable to have held such a parade (SEE BELOW); or - the accused refused to take part AND the identification was made without the person having been intentionally influenced to identify the accused. → s 114(3) reasonableness factors (non-exhaustive, mandatory): - kind and gravity of the offence; - importance of the evidence; - practicality — including: - if the accused failed to cooperate, the manner, extent and reason for the failure; - whether the identification was made at or about the time of the offence; - appropriateness having regard to the relationship (if any) between the accused and the identifying witness (SEE BELOW). The Meaning of Section 114(3)(d) Acknowledges the fundamental difference between a witness identifying a complete stranger and a witness recognising someone they already know. Where the witness already has prior knowledge of or an association with the accused, the identification is classified as "recognition evidence". Recognition evidence is still "visual identification evidence" (meaning section 114 still applies to it), the usual concerns attending the identification of a stranger—such as the "displacement effect" or the "rogues' gallery effect"—assume significantly less importance. If a witness states, "It was my brother," or "It was my former classmate," holding an identification parade is practically redundant. Consequently, the courts will generally use section 114(3)(d) to conclude that the existence of a prior relationship made it unreasonable and inappropriate to hold a formal parade. Prior Knowledge Generally Eliminate the Need for an ID Parade, but it depends entirely on the degree of familiarity. The court must evaluate the nature, extent, and currency of the relationship between the witness and the accused. Where the relationship involves a high degree of familiarity or a contemporary association, courts readily dispense with the requirement for an identification parade: Intimate or Familial Relationships: As noted in R v Marsh, where the witness claims to know the offender very well (e.g., "It was my brother"), it is generally "unreasonable" to hold a lineup. Closed Communities (Prisons): In R v Buchanan (2004) 152 A Crim R 302, a murder occurred in a prison wing housing 194 inmates. The witness and the accused were both inmates in that wing. Buddin J applied section 114(3)(d) and held that because the evidence was in the nature of recognition evidence derived from their status as inmates constantly observing one another, it was unreasonable to hold a parade. School/Work Relationships: In R v D, the victim was assaulted by a person he recognised as a fellow student from a primary school he had attended four years prior. The court held that due to this prior familiarity, it would not have been reasonable or possible for police to conduct an identification parade. Neighbours/Acquaintances: In R v Ford (unreported, NSWSC, 22 April 1998), Barr J held that the contemporary relationship between two inmates who had encountered each other several times in a small prison community made the accused's face familiar to the witness. His Honour ruled that an identification parade was not reasonably required. Conversely, where the prior relationship is weak, fleeting, or distant in time, section 114(3)(d) will not save the prosecution, and an identification parade will still be required. This was demonstrated in R v Taufua (unreported, NSWCCA, 11 November 1996). In that case, the identifying witness claimed to have seen the offender a number of times in the past. However, because twelve months had elapsed since the witness last saw the man, and the man's appearance had noticeably changed, Barr J held that this did not describe a relationship of "great familiarity". Therefore, it would have been entirely reasonable to hold an identification parade, and the failure to do so rendered the identification inadmissible. → s 114(4) presumption: not reasonable to have held a parade if it would have been unfair to the accused — e.g. despite reasonable efforts police cannot find enough people of similar appearance (R v Tahere [1999] NSWCCA 170). → s 114(5) presumption: where the accused refused to participate unless an Australian legal practitioner/legal counsel or chosen person was present, and there were reasonable grounds to believe it was not reasonably practicable for that person to be present — presumed not reasonable to hold the parade at that time. → s 114(6): the availability of pictures or photographs cannot be considered in deciding whether a parade was reasonable. → Practical effect: police must conduct (or at least seriously consider) a parade; in practical terms offer the accused the opportunity (and record the interaction); fail to hold one only if unreasonable case-by-case; "such a parade" = one including the accused, held before the identification.

Defence objections — the case law (run through these on any ID brief)

1COP 'The witness was intentionally influenced' (s 114(2))

→ Not intentional influence: simply telling the witness that the accused is in the array (R v To (2002) 131 A Crim R 264) — though the expectation may affect the witness's state of mind and hence the probative value (R v Blick [2000] NSWCCA 61 at [25]). → Fowkes v The King [2023] VSCA 160 — excluded under s 114(2): complainant 1 was told by a friend that one of the offenders was the accused, then found his Facebook profile and identified him; complainant 2, given the name, was shown the photo by his wife ("that's him, isn't it?") and immediately "recognised" it. Held: intentional influence by others, with a material effect on each complainant's recognition. → Fowkes propositions: (1) the influencer must act intentionally — deliberately seeking to bring about the identification — but need not be a police officer; (2) the influence must have had a "material effect" on the identification; (3) the prosecution must establish the negative — ID evidence is prima facie inadmissible under s 114(2) unless intentional influence / material effect did not occur.

1FB 'The witness looked my client up on Facebook'

→ The danger: Facebook identifications are "particularly dangerous in that they present a seductive and deceptive air of plausible identification but in fact rarely involve a group of people each having similar features to the accused […] the position is made even worse when a person is actually given the name of the man asserted by others to be the offender" (Peek J, Strauss v Police (2013) 115 SASR 90). → Fact-dependent: Peterson (a pseudonym) v The Queen [2014] VSCA 111 — stabbing; "confident" Facebook identification based on the offender's eyes (matching the description to police); directions were sufficient to overcome prejudice. → But see: Fowkes v The King [2023] VSCA 160 (above) — Facebook ID excluded where the witness was steered to the accused.

1OBV 'My client sticks out in the array'

ID evidence should be excluded where only the accused has the feature significant to the identifying witness — but Victorian authority requires a "very" or "clearly" distinguishing feature. → R v Blick (2000) 111 A Crim R 326: offender described with a goatee; the appellant's was the only goatee on a 12-image board (one other had a "fringe beard") — should have been excluded under s 137. → Knight v Brown (2004) 183 FLR 135: offender described with shoulder-length red hair and goatee; only the appellant had strikingly bright red hair on a nine-image board; red hair was the principal characteristic — verdict unsafe and unsatisfactory. → R v Fisher [2001] NSWCCA 380: the appellant was the only Aboriginal person with long hair in a six-person line-up; both witnesses said the long hair was significant but "not decisive" — evidence should have been excluded. → THD v The Queen (2010) 200 A Crim R 106 (Vic): accused looked older, only one with long/tied-back hair — Maxwell P: "quite different" from the cases above, which involved "a very distinctive feature differentiating — and clearly differentiating" the accused. Appeal dismissed. → McCartney (2012) 38 VR 1: alleged "obvious" differences in skin colour and facial structure; all men dark-haired, similar ages, mostly olive-skinned — "cannot be compared with Blick". Appeal dismissed.

1LU 'They should have done a line-up'

→ Pre-Evidence Act: no entitlement to a line-up. DPP v DJC (2012) 36 VR 33 — pub assault; police went straight to photos (investigation at a "dead end"); trial judge excluded relying on Alexander (photos "second best" = low probative value). Crown appeal succeeded: that was a jury question — the judge usurped the jury's role; "there is no rule of law that a photoboard identification is inadmissible just because an identification parade has not been arranged" (citing THD). → Post-Evidence Act: that comment concerned the old law. Holding a parade is now a prerequisite to admissibility — subject to the s 114(2)(b)–© exceptions.

1PDE 'It wasn't practical / reasonable to hold a parade'

→ Immediate identification: not practical where the identification took place a few minutes after the offence, before an investigation started (R v Thomason (1999) 139 ACTR 21). → Changed appearance: accused had "a black eye and was 'pretty well bruised up'" — impracticable to find a fair array (Ilioski v The Queen [2006] NSWCCA 164). → Insufficient similar people: s 114(4) presumption of unfairness (R v Tahere [1999] NSWCCA 170). → Witness has already seen a photo: a parade may be inappropriate because of the "displacement effect" (Peterson (a pseudonym) v R [2014] VSCA 111 at [48]) — the witness's memory of the photograph (or of media coverage / the accused in court) displaces the memory of the original sighting; the witness unwittingly compares the accused with the remembered photograph (R v Alexander (1981) 145 CLR 395; R v Mendoza [2007] VSCA 120). → Never a reason: the availability of photographs — s 114(6).

1RECID 'It's not identification, it's recognition'

There are no separate rules for recognition evidence — it is identification evidence and is caught by s 114. But the effect of ss 114(2)–(3) is that it will often have been unreasonable to hold a parade, because the witness would simply have identified the person they know — usually pretty persuasive. s 114(3)(d) specifically requires the court to consider the relationship between witness and accused. → R v Buchanan (2004) 152 A Crim R 302: identification within a prison wing of 194 prisoners who constantly watched one another; Buddin J (via s 114(3)(d)): where evidence is "more in the nature of recognition evidence", the usual ID concerns, "whilst not being completely eliminated, may nonetheless assume less significance" — unreasonable to hold a parade.

1PID 'This witness is demonstrably bad at identifying people'

→ May be a ground, but: you likely also need "and I'm still 100% sure". Dickman v The Queen [2015] VSCA 311 — appeal allowed where the witness had previously wrongly identified his attacker, placed people at the scene who were not there (and vice versa), two-year delay, displacement risk from CCTV, and the witness expected (indeed was looking) to find his attacker's image. → Overturned: R v Dickman [2017] HCA 24 — probative value was low, but there was no real danger the jury would give the evidence undue weight; conviction reinstated.

s 115 — Exclusion of identification by pictures (1PIC)

s 115 Every sub-rule

s 115(1): "picture identification evidence" = identification made wholly or partly by examining pictures kept for the use of police officers. s 115(9): applies in addition to s 114. s 115(10): "picture" includes photograph; "making" includes taking. → s 115(2) — mug shots: inadmissible if the pictures examined suggest they are pictures of persons in police custody. → s 115(3) — old picture while in custody: inadmissible if, when the pictures were examined, the accused was in the custody of a police officer of the force investigating the offence and the picture examined was made before the accused was taken into that custody. → s 115(4) — exceptions to (3): appearance changed significantly between offence and custody; or not reasonably practicable to make a new picture after custody. → s 115(5) — in custody, no parade: inadmissible if the accused was in that police custody when the pictures were examined unless - the accused refused a parade; - appearance changed significantly; or - it would not have been reasonable to hold a parade (retaining the preference for parades). s 115(6): ss 114(3)–(6) apply to that reasonableness question. → s 115(7) — directions on request: if picture ID is admitted, the judge must, on the accused's request — (a) if the picture was made after custody, inform the jury of that; (b) otherwise, warn the jury not to assume the accused has a criminal record or has previously been charged. (Note: JDA Pt 4 Div 4 also deals with ID warnings.) → s 115(8) — rebuttal (do not overlook): s 115 does not render inadmissible prosecution picture ID that contradicts or qualifies picture ID adduced by the accused — e.g. if D leads evidence the witness picked someone else's picture, R can show the same witness later correctly identified the accused. → Custody status matters: s 115(5) does not apply once the person has been transferred from police custody to Corrections (i.e. photoboard would be admissible and not subject to s115(5), if done whilst in corrections custody) Always check custody status Pham v R [2015] VSCA 263: the prosecutor mistakenly told defence counsel that the accused had already been transferred to Corrections custody when the photoboard was shown, leading defence counsel to mistakenly abandon their objection to the evidence. It later emerged the accused was still in police cells DPP v Byrne [2016] VSC 345: Melbourne Custody Centre is a Police Gaol therefore still in police custody. The exclusionary rule applies where the photo was kept by the same police force in whose custody the accused was when it was examined, even if made before that particular custody. → Practical effect: if there is a legitimate reason not to parade and police go to photos: no mug-shot boards (s 115(2)); if the accused is in custody for the charged offence, take a new photograph — unless appearance changed significantly or not practicable.

As noted by Stephen J in Alexander v The Queen, photoboards suffer from inherent defects, including:

The "Rogues' Gallery" Effect: The jury may assume that because police have a photograph of the accused, the accused has a prior criminal record.

The "Displacement" Effect: The witness's memory of the actual offender may be unconsciously replaced by the photograph they viewed on the photoboard.

Commonwealth offences — AFP procedures

Crimes Act 1914 (Cth) ss 3ZM, 3ZO. Investigatory provisions — non-compliance means the evidence is illegally obtained (s 138 balancing). s 3ZM (parades): at least nine people who "resemble the suspect in age, height and general appearance", no "markedly different" features, not dressed differently; video-record if practicable; the witness must tell police if "unable to identify the suspect with reasonable certainty" (s 3ZM(6)). s 3ZO (photoboards): at least nine people resembling the suspect in age and general appearance, no markedly different features; if practicable, the photo taken after arrest or after becoming a suspect (s 3ZO(2)).

Voice identification (1VOICE)

VOICE s 78 lay opinion — not a field of expertise

The issue: is "in my opinion, the voice on the tape is the accused" admissible as lay opinion (s 78) or expert evidence (s 79)? Plus any exclusionary discretion. Tran v The Queen [2016] VSCA 79 (at [85]) identified four forms voice ID can take: (1) recorded voice samples for jury comparison; (2) a non-expert's opinion that a voice heard on a relevant occasion was a particular person's; (3) an "ad hoc" expert — not scientific training but repeated listening to a large quantity of recorded material; (4) a true expert who has made a scientific study. → Khier v The Queen (2014) 43 VR 308: police informer who spent ~4 weeks listening to 1000+ intercepted calls could identify the accused's voice — admissible as lay opinion under s 78. → Tran v The Queen [2016] VSCA 79: drug case; translator who had translated the two accused's intercepts for weeks recognised their voices (definite on Chang; same-speaker evidence on Tran). Khier correctly states the law in Victoria — such evidence is admitted only through s 78. Appeal dismissed. → Teague v Commonwealth Director of Public Prosecutions [2025] VSCA 70: s 78 re-affirmed as the accepted basis — but appeal allowed: a detective who compared recordings of his dealings with Teague to the intercepts gave voice ID evidence, yet the recordings themselves could be played (edited to redact prejudice) to the jury, putting the jury in the same position as the detective (following Smith v R (2001) 206 CLR 650). Wrong to admit the detective's s 78 opinion where the jury gets the same recordings.

Probative value, s 137 and s 138 (1IMM)

Assessing probative value of ID evidence

• IMM v The Queen at [50]: the Heydon QC example — identification made "briefly in foggy conditions and bad light by a witness who did not know the person identified". Two approaches: (VCA) take it at its highest like any other identification, then look for particular weaknesses; (NSWCCA) it is "an identification, but a weak one because it is simply unconvincing". The statute requires the latter — the trial judge's assessment of probative value accommodates the frailties of the identification itself.

• Adopted in Victoria: Bayley v R [2016] VSCA 160 at [51]–[55].

• R v Bauer [2018] HCA 40: reiterated that judges take evidence at its highest when assessing probative value, but did not revisit or explain how to account for flaws in an identification.

• R v Dickman [2017] HCA 24: low probative value does not compel exclusion where there is no real danger of the jury over-weighting the evidence.

• Displacement / suggestion / foil bias: per the source material — R v Dickman (2017) 261 CLR 601, Moreno v The King VSCA 98 and Pham v The King VSCA 159 (accused the only person smiling on the board — "plainly unconvincing"); Moore (a pseudonym) v The King HCA 30 on appellate review of s 137. Years unverified — see amber flag.

• s 138: police failure to comply with specified identification procedures (including Crimes Act 1914 (Cth) ss 3ZM/3ZO) may enliven s 138.

Jury directions (1JDID)

JDA Jury Directions Act 2015 Pt 4 Div 4 — replaces s 116 AND s 165(1)

Directions on identification evidence are now in Division 4 of Part 4 of the JDA, replacing s 116 and s 165(1) of the Evidence Act. s 35: "identification evidence" is defined more broadly — positive and negative identification, objects and people, not limited to the accused, and includes recognition evidence. → When (JDA ss 12, 16): the judge must warn on defence request, unless there are good reasons not to; absent a request, the judge must still direct if there are "substantial and compelling" reasons. → The request (s 36): prosecution or defence must specify the significant matters said to make the evidence unreliable — not defined; may include (i) circumstances of the sighting; (ii) whether the person was known to the witness; (iii) time elapsed between sighting and report; (iv) differences between the description and actual appearance. → Content (s 36(3)): warn of the need for caution in accepting the evidence and the weight given to it; inform the jury of the significant matters the judge considers may make it unreliable (including counsel's, absent good reason); tell the jury a witness may honestly believe their evidence is accurate while mistaken, and that mistaken evidence may be convincing; if relevant — that multiple witnesses may all be mistaken; if relevant — that mistaken identification has resulted in innocent people being convicted. → Supplement: where picture ID is admitted, the additional s 115(7) direction (picture taken after custody / no assumption of criminal record) on request.

The two foundation cases — facts and ratio

Case	Facts	Ratio
Alexander v The Queen (1981) 145 CLR 395	Burglary; witnesses identified Alexander from a folder of police photographs after he was already in custody; no parade held. Witness Connell could not remember which photograph he had picked; Det Sgt Duggan was permitted to say it was Alexander's. Appeal dismissed.	(1) Out-of-court photographic ID is admissible as a matter of law, even where the suspect is under arrest and a parade could have been held. (2) Discretion to exclude where admission would operate unfairly — balancing probative value against the "rogues' gallery" effect (suggesting a record) and the "displacement" effect (photo replaces memory of the offender). (3) Third-party evidence completing an identification (officer saying whom the witness picked) is admissible as original evidence, not hearsay — it completes the witness's incomplete in-court evidence.
Domican v The Queen (1991) 173 CLR 555	Shooting with intent to murder; ID by the victim's wife who did not know the accused, had a fleeting look while hiding under extreme stress, identified him nine months later from photographs showing him with a wig and false moustache, having seen him on TV meanwhile. General warning only; strong independent circumstantial and confessional evidence. Appeal allowed; conviction quashed; new trial.	(1) Where ID evidence is a significant part of the proof of guilt and is disputed, a general warning is insufficient — the judge must "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" (562) — the "Domican warning". (2) Merely repeating defence counsel's arguments does not discharge the duty — the direction must carry the authority of the judge's office. (3) Other strong evidence does not absolve the duty — the jury might reject it and convict on the flawed ID alone; an inadequate warning ordinarily means a miscarriage of justice. (Note: the Domican warning is now replaced in Victoria by JDA Pt 4 Div 4.)