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corpus · 4.88k rows

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test · 4.88k rows

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4.11-c9-s8	4.11 Content of the Direction	- Counsel may have considered the evidence unimportant in the context of the case; - Counsel may have overlooked the matter during cross-examination; - Counsel may have misunderstood his or her instructions; - The witness may not have been co-operative in providing a statement; - Forensic pressures may have resulted in looseness or inexactitude in the framing of questions; - The other evidence given by the witness may have made it clear that he or she would deny the challenge; - The witness’ evidence may have been so fanciful that there was no need for any cross-examination (R v MG [2006] VSCA 264; R v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; R v McLachlan [1999] 2 VR 553; R v Laz [1998] 1 VR 453; R v Thompson (2008) 21 VR 135; R v Foley [2000] 1 Qd R 290).	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11-c9-s9	4.11 Content of the Direction	29. The judge must limit the reasons he or she provides to the jury to those that are realistic in the context of the trial (R v SWC [2007] VSCA 201). 30. The judge only needs to include reasons that the jury may otherwise overlook. This will depend on the issues in the context of the trial (R v Manunta (1989) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; R v ZW [2006] VSCA 256). 31. Any explanations raised by defence counsel about why he or she failed to comply with the rule should be told to the jury (R v Morrow (2009) 26 VR 526). 32. It may not be appropriate to provide a possible explanation for counsel’s failure to fully cross-examine a witness where the effect of doing so would be to emphasise the significance of counsel’s omission, rather than to explain it (R v SWC [2007] VSCA 201; R v Smart [2010] VSCA 33). 33. Where it is clear that there is a good forensic reason for the party’s failure to cross-examine the witness,[^5] a Browne v Dunn direction should not be given. To give a direction in such circumstances would be to invite the jury to come to a conclusion about a matter based on a premise that everyone, apart from the jury, understands to be false (Bugeja v R (2010) 30 VR 493). ## Prosecution Breaches of the Rule	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11-c9-s10	4.11 Content of the Direction	34. Where the prosecution has breached the rule by failing to cross-examine a defence witness (including the accused), a direction should inform the jury of the prosecutor’s failure to raise the matters in question with the witness and that the jury can take that into account in considering the weight they give to the prosecutor’s arguments about that witness’ evidence (Cavanagh and Rekhviashvili v R [2016] VSCA 305, [103]; Smith v R [2012] VSCA 187, [53]). 35. In some cases, it may be appropriate to also inform the jury of answers the witness might have given, which would blunt a line of argument advanced by the prosecution, as a way of showing why the failure may be relevant to assessing the prosecutor’s arguments (see, e.g. R v Thompson (2008) 21 VR 135, [68], [123]). 36. Directions on the prosecution breach may not, however, be necessary if the prosecution acknowledges the breach to the jury and withdraws any arguments which should not have been made due to the breach (see Cavanagh and Rekhviashvili v R [2016] VSCA 305, [103]). 37. In one of the few cases to specifically address this issue, it was held that where the prosecution has breached the rule by failing to cross-examine one of its own witnesses: - It would ordinarily be appropriate to tell the jury that the defence had been denied the opportunity to support that witness’s evidence (either in cross-examination or by calling independent evidence); and - In some cases it may be appropriate to direct the jury to ignore the prosecution’s suggestion that the witness’s evidence be rejected. This will depend on factors such as whether other contradictory evidence has been given, and the circumstances of the breach (Kanaan v R [2006] NSWCCA 109). 38. Since Kanaan was decided, a body of authority has developed on the unfairness of the prosecution attacking the credit of its own witness without having sought to cross-examine that witness, and the significance of unchallenged exculpatory evidence when deciding whether a conviction is unreasonable or cannot be supported having regard to the evidence (see Prosecution failure to cross-examine unfavourable witnesses, above). In an appropriate case, it may be open to a trial judge to:	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11-c9-s11	4.11 Content of the Direction	- Note that the prosecution has not challenged a witness’ exculpatory evidence; - Remind the jury that the prosecution bears the onus of proof; and - Direct the jury that, given the witness’ exculpatory evidence is unchallenged, it would not be open to ignore or disregard that evidence. 39. It will generally not be appropriate to tell the jury that they may draw an adverse inference against the prosecution due to breaching the rule in Browne v Dunn, as prosecution breaches are unlikely to provide an opportunity for recent invention (see "Using the Breach to Draw Adverse Inferences" above). However, in some cases it may be appropriate to tell the jury that, due to the breach, they may more readily reject certain inferences sought by the prosecution. 40. While in some cases it may be appropriate to direct the jury that there may be good reasons why the prosecution failed to comply with the rule in Browne v Dunn (see "Reasons for Failure to Comply With the Rule" above), judges should be careful when doing so. Such a direction risks undermining the obligations placed on the prosecution to present all relevant material to the jury. In addition, the reasons why the prosecution failed to comply with the rule may not be relevant to the jury’s consideration of the consequences of the breach. ## Other Directions 41. In some circumstances, the judge may need to give one or more of the following directions instead of a standard Browne v Dunn direction: - That the breach reflects only on defence counsel (R v Foley [2000] 1 Qd R 290; R v Morrow (2009) 26 VR 526); - That because of the breach, it was not open to counsel to advance a particular submission (R v Ferguson (2009) 24 VR 531); or - That the jury must not make an adverse finding against the accused as a result of a suggested failure to challenge a witness (R v Coswello [2009] VSCA 300; Bellemore v Tasmania (2006) 16 Tas R 364). 42. These directions are addressed in turn below. ### Breach Solely Reflects on Counsel 43. Where it is clear that the omission reflects only on the accused’s counsel (or solicitor), and not on the accused him or herself, instead of giving a standard Browne v Dunn direction, the jury should be told that:	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11-c9-s12	4.11 Content of the Direction	- The witness or the prosecution’s case has been potentially disadvantaged by the omission; and - This was not the fault of the accused but rather of counsel (or the solicitor) (R v Foley [2000] 1 Qd R 290; R v Morrow (2009) 26 VR 526 (Nettle JA)). 44. A direction of this nature should not be given where it is clear that the omission reflects only on the prosecution. Incompetence by the prosecution will not excuse a breach of the rule in Browne v Dunn. In such cases, the judge should continue to give a standard Browne v Dunn direction (see above). ### Counsel Was Prevented From Advancing a Submission 45. Where, due to a breach of the rule in Browne v Dunn, it was not open to counsel to advance a particular submission in the course of his or her final address, a judge may need to direct the jury of that fact in strong terms (R v Ferguson (2009) 24 VR 531). 46. In directing the jury about this matter, the judge must be careful not to withdraw any issues of fact where the prosecution carries the burden of proof from the jury (see R v Ferguson (2009) 24 VR 531). 47. An alternative solution to preventing an argument is to warn the jury in strong terms of the danger of adopting or accepting that argument, given the party's failure to cross-examine relevant witnesses (CMG v R (2013) 46 VR 728). ### Warning Against Improper Browne v Dunn Reasoning 48. In some cases the prosecution may improperly suggest that the defence has breached the rule in Browne v Dunn. For example, in cases where defence counsel has no obligation to put a matter to a particular witness, the prosecution may nevertheless cross-examine the accused about counsel’s failure to do so, or argue that the jury should draw an adverse inference from that failure (see, e.g. R v Coswello [2009] VSCA 300; Bellemore v Tasmania (2006) 16 Tas R 364; Bugeja v R (2010) 30 VR 493). 49. In such circumstances, the judge must:	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11-c9-s13	4.11 Content of the Direction	- Direct the jury that defence counsel was not obliged to put that matter to the witness; and - Warn the jury not to make an adverse finding against the accused as a result of the suggested failure to challenge that witness (R v Coswello [2009] VSCA 300; Bellemore v Tasmania (2006) 16 Tas R 364; Bugeja v R (2010) 30 VR 493). 50. At common law, it was mandatory for the judge to give these directions. Under the Jury Directions Act 2015, defence counsel may request these directions, or the judge may consider that there are substantial and compelling reasons for giving the directions in the absence of a request (Jury Directions Act 2015 ss 15, 16). 51. In addition, the judge should warn the jury not to take the breach into account when assessing the weight of the contradictory evidence. ## Role of the Jury	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11-c9-s14	4.11 Content of the Direction	52. A Browne v Dunn direction generally only describes a permissible mode of reasoning. Where the direction concerns a defence breach, the jury is free to disregard the inferences that are open from the failure to properly cross-examine a relevant witness (R v Nicholas (2000) 1 VR 356; Bulstrode v Trimble [1970] VR 840; MWJ v R (2005) 222 ALR 436; R v Rajakaruna (No 2) (2006) 15 VR 592; Bugeja v R (2010) 30 VR 493). A prosecution breach may, however, require a direction about how certain modes of reasoning or findings are not open. 53. A judge should only give a Browne v Dunn direction if he or she is satisfied that a breach has, or has arguably occurred, and that it cannot be remedied by a different means (see e.g. R v Ferguson (2009) 24 VR 531; R v Morrow (2009) 26 VR 526). For more information see Remedies for Breaching the Rule and When to Give A Direction above. 54. If it is open to argue that defence counsel has not complied with the rule in Browne v Dunn, it is for the jury to determine whether the witness was given a fair opportunity to address the assertion being made by the cross examining party (R v Nicholas (2000) 1 VR 356; Beattie v Ball [1999] 3 VR 1; R v Manunta (1989) 54 SASR 17; R v Ferguson (2009) 24 VR 531). 55. When determining whether or not the rule has been breached, the tribunal must consider whether the differences between the witness’s evidence and the other party’s case were sufficiently material that the witness should have been challenged in cross-examination (R v Nicholas (2000) 1 VR 356; Beattie v Ball [1999] 3 VR 1; R v Manunta (1989) 54 SASR 17). ## Explaining Exchanges with Counsel	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11-c9-s15	4.11 Content of the Direction	56. Where counsel has asked the judge during cross-examination if he or she has complied with the rule in Browne v Dunn, the judge may explain this exchange to the jury (R v Demiri [2006] VSCA 64). 57. The judge should describe the obligation to put certain matters to a witness as a "rule of professional practice" rather than an "ethical obligation", as the latter may suggest that counsel is merely "going through the motions", and does not think that the matters he or she is putting to the witness are true (R v Demiri [2006] VSCA 64). ## Do Not Comment on Other Unchallenged Evidence 58. Unless the rule in* Browne v Dunn* applies, judges should be careful about commenting on the fact that certain inculpatory evidence was unchallenged or uncontradicted. Such a comment may unfairly imply that it was open to defence counsel to have challenged or contradicted the evidence, when in many cases (e.g. in relation to complaint evidence) they will not have had scope to do so (Jiang v R [2010] NSWCCA 277). Last updated: 23 June 2025	[^5]: E.g. Where the prosecution has made it clear that one of the co-accused’s prior convictions will be revealed to the jury if defence counsel cross-examines the witness (Bugeja v R (2010) 30 VR 493).	109	4 – Evidentiary Directions	4.11 Failure to Challenge Evidence (Browne v Dunn)_0.docx	253	https://www.judicialcollege.vic.edu.au/media/757/file
4.11.1-c1-s1	4.11.1 Charge: Breach of the Rule in Browne v Dunn	# 4.11.1 Charge: Breach of the Rule in Browne v Dunn This charge may be used where: i) Defence counsel has breached the rule in Browne v Dunn; and ii) That breach cannot be remedied by means other than giving a direction; and iii) The judge determines that a direction is necessary in the circumstances of the case. See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required The charge may be modified for use in cases where the prosecution has breached the rule in Browne v Dunn. However, care should be taken when doing so. The judge should bear in mind the accusatorial nature of criminal trials, the obligation on the prosecution to present its whole case and the burden of proof. See 4.11 Failure to Challenge Evidence (Browne v Dunn) for guidance. ## The Rule in Browne v Dunn I now need to direct you about a rule of practice concerning the cross-examination of witnesses. This rule says that whenever a prosecution witness gives evidence, defence counsel must cross-examine him or her about any matters that are relevant to the defence case, and must put any allegations that s/he intends to make against that witness directly to him or her. This is a rule of fairness, which allows witnesses to confront any proposed challenges to their evidence, and enables you to see and assess the reaction of the witnesses to those challenges.		110	4 – Evidentiary Directions	4.11.1 Charge - Breach of the Rule in Browne v Dunn.docx	266	https://www.judicialcollege.vic.edu.au/media/758/file
4.11.1-c2-s1	4.11.1 Using the Breach to Assess Weight	## Using the Breach to Assess Weight [If the fact that the rule was broken is not a jury issue, add the following shaded section.] Defence counsel broke this rule by not challenging NOW about [describe relevant matter and/or allegation]. As a result, NOW was denied the opportunity to respond to that challenge, and you were deprived of the opportunity of hearing his/her evidence in response. You may take this fact into account when assessing the weight you give to [describe relevant matter, allegation or argument].[^2] [If the allegation that the rule was broken is a jury issue, add the following shaded section.] In this case, the prosecution alleged that defence counsel broke this rule by not challenging NOW about [describe relevant matter and/or allegation]. They argued that NOW was therefore denied the opportunity to respond to that challenge, and you were deprived of the opportunity of hearing his/her evidence in response. The defence denied breaking the rule, arguing that [describe defence argument, e.g. "they had put the matter to NOW in sufficient detail"]. It is for you to determine whether NOW was given a fair opportunity to address this matter. In making this determination, you should consider how significant the matter is, and whether counsel should have cross-examined NOW about it. [Insert any other information necessary for the jury to determine whether the rule was breached.] If you find that defence counsel should have cross-examined NOW about [describe matter], you may take his/her failure to do so into account when assessing the weight you give to [describe relevant matter, allegation or argument].[^3] However, you should also consider the fact that there may be a good reason why defence counsel did not challenge NOW about this matter. For example, [describe possible reasons for counsel’s failure to comply with the rule].[^4]	[^2]: In some cases, it may be appropriate to delete this paragraph. [^3]: In some cases, it may be appropriate to delete this paragraph. [^4]: Judges should only include reasons that are realistic in the context of the trial, and that the jury may otherwise overlook. A reason should not be provided if it would emphasise the significance of counsel’s omission, rather than explain it. Examples of possible reasons are provided in 4.11 Failure to Challenge Evidence (Browne v Dunn).	110	4 – Evidentiary Directions	4.11.1 Charge - Breach of the Rule in Browne v Dunn.docx	266	https://www.judicialcollege.vic.edu.au/media/758/file
4.11.1-c3-s1	4.11.1 Using the Breach to Infer Recent Invention	## Using the Breach to Infer Recent Invention [If the circumstances of the breach give rise to the prominent hypothesis that the contradictory evidence is a fabrication, consideration may be given to adding the following shaded section.] Warning: This part of the charge should only be given in exceptional circumstances. See 4.11 Failure to Challenge Evidence (Browne v Dunn) for guidance. You may also infer from defence counsel’s failure to cross-examine NOW about [describe matter], that any evidence which conflicts with NOW’s evidence about that matter was invented after NOW gave his/her evidence, and should not be believed. This would include [summarise relevant defence evidence]. This does not mean that you must disbelieve the defence evidence on this issue. I am simply describing an inference that you are permitted to draw. It is for you to determine whether or not to draw that inference. You must be very cautious about drawing this inference. You will recall what I previously told you about drawing inferences.[^5] In this context, that means that before inferring that NOA invented his/her account after NOW gave evidence, you must decide that there is no other reasonable explanation for defence counsel’s failure to cross-examine NOW about [describe matter]. If you think that it is possible that there was another reason for defence counsel’s failure to cross-examine NOW about that matter, you may not draw this inference. Last updated: 9 March 2017	[^5]: This section of the charge assumes that the jury has been previously instructed about inferences. If this is not the case, the charge should be modified accordingly.	110	4 – Evidentiary Directions	4.11.1 Charge - Breach of the Rule in Browne v Dunn.docx	266	https://www.judicialcollege.vic.edu.au/media/758/file
4.11.2-c1-s1	4.11.2 Charge: Warning against Improper Browne v Dunn Reasoning	# 4.11.2 Charge: Warning against Improper Browne v Dunn Reasoning This charge may be used where the prosecution has improperly suggested that the rule in Browne v Dunn has been breached. See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. In this case the prosecution [describe relevant action, e.g. "cross-examined NOA about why defence counsel failed to ask NOW about…" or"suggested that defence counsel should have asked NOW about…"]. This was not an appropriate argument for the prosecution to make, as defence counsel was not obliged to ask NOW about this matter. You must therefore disregard the prosecution’s arguments on this point. You must not make any unfavourable findings against NOA as a result of defence counsel’s suggested failure to challenge NOW about that matter, or take the fact that s/he failed to do so into account when assessing the evidence in this case. Last updated: 29 June 2015		111	4 – Evidentiary Directions	4.11.2 Charge - Warning against Improper Browne v Dunn Reasoning.docx	268	https://www.judicialcollege.vic.edu.au/media/759/file
4.12-c1-s1	4.12 Identification Evidence	# 4.12 Identification Evidence ## Overview 1. Identification evidence is seen to be inherently fragile. In Alexander v R (1981) 145 CLR 395 at 426, Mason J stated that: Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed. 2. Despite this fragility, identification evidence is seen to be particularly seductive, especially as it is often given by witnesses who appear honest and convincing. Judicial experience has shown that such witnesses can be mistaken. It is often noted that serious miscarriages of justice have occurred in the past due to juries relying on such evidence (R v Burchielli [1981] VR 611; Domican v R (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593; see also Jury Directions Act 2015 s 36). 3. As juries may not know of this danger, they may need to be warned about it, to prevent them from giving too much probative value to evidence that may be flawed (R v Burchielli [1981] VR 611; Domican v R (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593). 4. Jury Directions Act 2015 Part 4, Division 4 prescribes the content of the warning a judge may give in relation to identification evidence.		112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c2-s1	4.12 What is Identification Evidence?	## What is Identification Evidence? 1. For the purposes of jury directions, "identification evidence" is defined in Jury Directions Act 2015 s 35. That definition is broader than the definition which applies under the* Evidence Act 2008. It extends to capture the various common law categories of identification evidence, including: - positive identification evidence: evidence by a witness identifying a previously unknown person as someone they saw on a prior relevant occasion (see, e.g. Festa v R* (2001) 208 CLR 593; R v Marijancevic (1993) 70 A Crim R 272);[^2] - recognition evidence: evidence by a witness that, at the time the relevant act was committed, they recognised a person who was present (due to their prior familiarity with that person) (see, e.g. R v Marijancevic (1993) 70 A Crim R 272; R v Lovett [2006] VSCA 5); - similarity evidence: evidence asserting that someone’s appearance or characteristics (e.g. age, race, stature, colour) are similar to that of a person seen on a prior occasion (see, e.g. R v Clune (No 2) [1996] 1 VR 1; Festa v R (2001) 208 CLR 593);[^3] - comparison evidence: evidence of a non-expert witness which compares two people or items which do not require particular expertise to compare (e.g. evidence comparing the voice of the accused with a voice on a tape) (see, e.g.* Bulejcik v R* (1996) 185 CLR 375; R v Theos (1996) 89 A Crim R 486 (Vic CA));[^4] - negative identification evidence: evidence identifying someone other than the accused as the offender, or evidence that the accused is not the offender (see, e.g. R v Pollitt (1990) 51 A Crim R 227).	[^2]: Positive identification evidence can be direct or circumstantial. It is direct evidence when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question (e.g. evidence that the accused was seen killing the victim). It is circumstantial evidence when its acceptance provides the grounds for an inference that the accused committed the crime in question (e.g. evidence that the accused was seen leaving the scene of the crime) (Festa v R (2001) 208 CLR 593). [^3]: Similarity evidence is sometimes called "circumstantial identification evidence" (see, e.g. R v Clune (No 2) [1996] 1 VR 1). Care should be taken not to confuse this with positive identification evidence of a circumstantial nature (see above). [^4]: Comparison evidence may be a form of positive identification evidence (if it posits that the items being compared are identical) or similarity evidence (if it simply asserts a resemblance between the items) (see, e.g. Bulejcik v R (1996) 185 CLR 375).	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c3-s1	4.12 When to Warn the Jury about Identification Evidence	## When to Warn the Jury about Identification Evidence 1. A judge must warn the jury about identification evidence where the prosecution or defence counsel requests such a direction, unless there are good reasons for not doing so. If no request is made by counsel, a judge has a residual obligation to give a warning if he or she considers that there are substantial and compelling reasons for giving the warning (Jury Directions Act 2015 ss 12, 16). 2. For more information on the request for direction process or on the residual obligation, see 3.1 Directions Under Jury Directions Act 2015. 3. When requesting a direction on identification evidence, the prosecution or defence must specify the significant matters that may make the evidence unreliable (Jury Directions Act 2015 s 36). ### Content of the Charge 4. A direction on identification evidence will be sufficient where it: - warns the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; - and informs the jury of the following matters: - the significant matters which the trial judge considers may make the evidence unreliable (where a party has requested the direction, the judge should include those matters which the party has identified has significant, unless there are good reasons for not doing so); and - that a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken and that the mistaken evidence of a witness may be convincing; and - if relevant, that a number of witnesses may all be mistaken; and - if relevant, that mistaken identification evidence has resulted in innocent people being convicted (Jury Directions Act 2015 s 36(3)). 5. While the judge should address these matters in the same part of the charge, the splitting of these directions will not necessarily constitute error (R v Stewart (2001) 52 NSWLR 301). 6. It is common practice for all of these matters to be addressed when the evidence is admitted in the trial, as well as in the judge’s summing up (S Odgers, Uniform Evidence Law (8th ed, 2009) [1.4.2880]). 7. Additional directions, which are unrelated to the potential unreliability of identification evidence, may also be required where:		112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c3-s2	4.12 When to Warn the Jury about Identification Evidence	- an identification is made wholly or partly by examining pictures kept for the use of police officers (Evidence Act 2008 s 115); or - evidence is given that the accused refused to participate in an identification parade (R v Davies (2005) 11 VR 314). 8. This topic first provides a brief outline of the types of evidence which fall within the definition of identification evidence in the Jury Directions Act 2015. This outline informs the remainder of this topic, which addresses the content of the warning and any additional directions that may be required. 9. In some cases, identification evidence may be substantially the only evidence of one or more elements. In such cases, it may be appropriate for the judge to clearly identify for the jury the importance of the evidence. Judges should discuss the issue with counsel and hear submissions on what additional directions or comments are appropriate. One option is to refer to the evidence of the confession or admission and direct the jury that it must be satisfied that that evidence proves the element beyond reasonable doubt (Jury Directions Act 2015 s 61, Example).		112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c4-s1	4.12 "Identification Evidence" Under the Jury Directions Act 2015	## "Identification Evidence" Under the Jury Directions Act 2015 1. Section 35 of the Jury Directions Act 2015 defines "identification evidence" as: An assertion by a person, or a report of an assertion by a person, to the effect that– (a) he or she recognizes, or does not recognise, a person or object as the person or object that he or she saw, heard or perceived on the relevant occasion; or (b) the general appearance or characteristics of a person or object are similar, or are not similar, to the general appearance or characteristics of the person or object that he or she saw, heard or perceived on the relevant occasion- and includes- (c) visual identification evidence within the meaning of section 114 of the Evidence Act 2008; and (d) picture identification evidence within the meaning of section 115 of the Evidence Act 2008. 2. Identification evidence may therefore be given in relation to any person, whether he or she is the accused or not, as well as in relation to objects (Jury Directions Act 2015 s 35; see also R v Bath [1990] Crim LR 716 (CA); R v Kotzmann [1999] 2 VR 123). 3. As the definition of identification evidence in the Jury Directions Act 2015 refers to what the person making the assertion "saw, heard or perceived", it appears to apply to: - aural identification (see, e.g. Bulejcik v R (1996) 185 CLR 375; R v Callaghan (2001) 4 VR 79); and - identification by touch (see, e.g. AK v The State of Western Australia [2006] WASCA 245), smell or taste (see, e.g. AK v The State of Western Australia (2008) 232 CLR 438 (Heydon J)).		112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c4-s2	4.12 "Identification Evidence" Under the Jury Directions Act 2015	4. The definition adopted by the Jury Directions Act 2015 does not, however, extend to circumstances where a jury makes their own comparison, such as between a photograph or CCTV camera footage and the accused, or between voices which are captured on recordings. 5. It is unclear whether the definition of identification evidence in the* Jury Directions Act 2015* covers comparison evidence given by a non-expert witness. Arguably, the definition does cover such evidence, as the section addresses identifications that occur on a "relevant occasion". The term "relevant occasion" is not defined in the Act. Conceivably, a "relevant occasion" could include an occasion on which a witness hears an audio recording of a person’s voice. Further, the Explanatory Memorandum to the Jury Directions Bill 2015 contemplates that comparison evidence given by a non-expert witness will constitute identification evidence for the purposes of the* Jury Directions Act 2015*.		112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c5-s1	4.12 Method of identification	## Method of identification 1. The definition of identification evidence adopted in the Jury Directions Act 2015 encompasses identifications made by any method (e.g. identification parade, photo board identification or dock identification). This applies irrespective of whether the identification was conducted in or out of court (R v Taufua NSWCCA 11/11/1996; R v Tahere [1999] NSWCCA 170; R v Thomason (1999) 139 ACTR 21). 2. The definition of identification evidence in the Jury Directions Act 2015 only covers assertions made by people (or reports of such assertions). It does not cover: - identifications made by animals (e.g. tracker dogs) (R v Stewart (2001) 52 NSWLR 301); - identifications made by computer software (e.g. using facial recognition software) (see, e.g. R v Tang (2006) 65 NSWLR 681).		112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c6-s1	4.12 Types of Identification Evidence	## Types of Identification Evidence 1. The common law recognised several categories of identification evidence. These are described below, as the potential dangers of identification evidence differ between the categories. ## Positive Identification Evidence 2. Positive identification evidence is evidence by a witness identifying a previously unknown person as someone he or she saw on a prior relevant occasion. Such evidence may be used as direct or circumstantial proof of an offence (Festa v R (2001) 208 CLR 593). 3. An example of positive identification evidence is picture identification evidence, as defined under s 115 of the Evidence Act 2008. Such evidence relates to ‘an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers’ i.e. identification of an accused through mug shots or photo boards (see, e.g. R v Carpenter [2011] ACTSC 71, [41]). ## Recognition Evidence 4. Recognition evidence is evidence from a witness that he or she recognises a person or object as the person or object that he or she saw, heard or perceived on a relevant occasion. ## Similarity Evidence 5. Similarity evidence is evidence that the general appearance or characteristics a person or object perceived is similar to the person or object perceived on a relevant occasion. ## Comparison Evidence 6. There are three ways in which comparisons may be made. These are comparisons: - by witnesses comparing people or items about which they have greater knowledge than the jury, but which do not require particular expertise to compare; - by witnesses comparing items about which they have particular expertise; and - by the jury comparing people or items which do not require particular knowledge or expertise to compare. 7. Only the first type of comparison listed above may be considered "identification evidence" for the purposes of the Jury Directions Act 2015. It is clear that jury comparisons do not fall within the ambit of that Act. Such comparisons may, however, require directions at common law. 8. Evidence comparing items about which a witness has particular expertise (e.g. fingerprints) should be treated as "opinion evidence" rather than "comparison evidence".[^5] ## Negative Identification Evidence 9. The term "negative identification evidence" is generally used to refer to exculpatory evidence in which:	[^5]: See 4.13.1 General Principles of Opinion Evidence.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c6-s2	4.12 Types of Identification Evidence	- someone other than the accused is identified as the offender; or - a witness states that the accused is* not* the offender (R v Pollitt (1990) 51 A Crim R 227; R v Johnson (2004) 89 SASR 294). 10. The term has also been used to refer to evidence that a witness failed to identify the accused from a photo-board or at an identification parade (see, e.g. Beresi v R [2004] WASCA 67). 11. Negative identification evidence may be adduced by the defence, or by a prosecution witness in fulfilling its duty to call all relevant witnesses (R v Rose (2002) 55 NSWLR 701; Kanaan v R [2006] NSWCCA 109). 12. This exculpatory evidence falls within the definition of ‘identification evidence’ under the Jury Directions Act 2015, as section 35 explicitly refers to statements that the witness does not recognise, or that the appearance of a person or object is not similar, to the person or object perceived on a relevant occasion. 13. The fact that negative identification evidence favours the accused does not itself provide a "good reason" for not giving a s 36 warning (Kanaan v R [2006] NSWCCA 109).	[^5]: See 4.13.1 General Principles of Opinion Evidence.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s1	4.12 When to Give an Identification Evidence Warning	## When to Give an Identification Evidence Warning 1. Part 3 of the* Jury Directions Act 2015* governs the circumstances in which a judge may need to warn the jury about the potential unreliability of identification evidence. 2. The overall effect of the scheme (as outlined below) is that a warning must usually be given in relation to identification evidence if the prosecution or defence counsel requests a warning or if the judge considers that there are substantial and compelling reasons for giving the warning despite the absence of a request (Jury Directions Act 2015 ss 15, 16). 3. See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required under this residual obligation. ## When is a Warning under Jury Directions Act 2015 s 36 Required? 4. The prosecution or defence counsel may request that the trial judge direct the jury on identification evidence. Such a request must be in accordance with* Jury Directions Act 2015* s 12 (Jury Directions Act 2015 s 36(1)). 5. Counsel making such a request must specify the significant matters which may make the evidence unreliable (Jury Directions Act 2015 s 36(2)). 6. Once a party has made such a request, the trial judge must give a direction in respect of identification evidence, unless there are good reasons for not doing so (Jury Directions Act 2015 s 15). 7. Further, a trial judge must give a direction in respect of identification evidence if he or she considers that there are substantial and compelling reasons to do so, despite the absence of a request (Jury Directions Act 2015 s 16). 8. When giving a direction in respect of identification evidence, the trial judge must: - warn the jury of the need to exercise caution when determining whether to accept the evidence and the weight to be given to it; and - inform the jury of the significant matters that he or she considers may make the evidence unreliable; and - inform the jury that: - a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and - the mistaken evidence of a witness may be convincing; and - if relevant, inform the jury that a number of witnesses may all be mistaken; and - if relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted (Jury Directions Act 2015 s 36(3)).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s2	4.12 When to Give an Identification Evidence Warning	### What is a "Significant" Matter? 9. The* Jury Directions Act 2015* does not define what a "significant" matter is for the purposes of directions in respect of identification evidence. The matters which are significant will depend on the facts of the case and may include: - the circumstances of the sighting - whether the person was known to the witness - the time that elapsed between the sighting and the reporting to police - any differences between the description of the person and their actual appearance.[^6] 10. The party requesting the direction must also specify the significant matters that may make the evidence unreliable. The role of the judge is to determine which of those matters are significant, and then direct the jury accordingly. Unless there are substantial and compelling reasons to do so, a judge does not need to add further matters which he or she considers significant (see* Jury Directions Act 2015* ss 15, 16). ### Substantial and Compelling Reasons for a Warning 11. In some cases, there may be substantial and compelling reasons for a judge to give an identification evidence warning even where such a direction is not sought by the parties (Jury Directions Act 2015 s 16). 12. It is suggested that there will be "substantial and compelling" reasons for giving a direction in the following circumstances: - the judge considers that the direction is open on the evidence; - identification evidence is a matter which the judge considers is in issue in the trial. It is possible, although very unlikely, that a judge may draw such a conclusion even where defence counsel indicates that he or she does not consider it to be in issue (e.g. if defence counsel makes a fundamental error regarding what is or is not in issue and this has not been addressed during discussions with the trial judge); - identification evidence is a significant issue in the case. If it is a minor issue or only concerns a small portion of the evidence in the trial, it is unlikely that the reasons for giving an identification evidence direction would be substantial and compelling. On the other hand, if identification evidence is central to the issues in dispute, the direction is more likely to be necessary under the residual obligation; and - the reasons for giving the identification direction must substantially outweigh the reasons for not giving the direction. In applying the test, the judge must do more than merely weigh the reasons for giving the direction. He or she must also consider the reasons for not giving the direction.[^7] ## Factors affecting whether a direction is required	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s3	4.12 When to Give an Identification Evidence Warning	13. The following sections describe common law principles regarding when identification evidence directions are necessary. These principles may provide guidance on when a judge should suggest that counsel request a warning. ### Positive Identification Evidence 14. At common law, a warning about positive identification evidence may be necessary where: - the evidence represents any significant part of the proof of guilt of an offence; and - the reliability of the identification is disputed (Domican v R (1992) 173 CLR 555; R v Burchielli [1981] VR 611;* Festa v R* (2001) 208 CLR 593; Dhanhoa v R (2003) 217 CLR 1).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s4	4.12 When to Give an Identification Evidence Warning	15. A warning may be needed if the issue of identification is "fairly and squarely raised as an issue". This was for a judge to decide, in light of the circumstances of the case (R v MacKay [1985] VR 623; Sindoni v R [2011] VSCA 195). 16. It was unclear whether, at common law, a direction was required if the evidence was not disputed, but the judge considered that there was some evidence which cast doubt on the identification (compare R v Courtnell [1990] Crim LR 115 (CA) and R v Bath [1990] Crim LR 716 (CA). 17. The warning may be necessary in relation to direct and circumstantial positive identification evidence (Festa v R (2001) 208 CLR 593). 18. If the disputed identification evidence forms a significant part of the proof of guilt, a warning may need to be given even if a conviction could not be based on that evidence alone (e.g. if it is a purely circumstantial evidence, requiring other evidence to support it) (R v Crupi (1995) 86 A Crim R 229). 19. The need for a warning is not removed by the existence of other evidence on which the accused could be convicted. The judge should assume that the jury may decide to convict solely on the basis of the identification evidence (Domican v R (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593). 20. Even if there is other important evidence, if the jury could not convict without the identification evidence the judge may need to give a strong warning (R v Clune [1982] VR 1). 21. A warning may be needed even if there is more than one identifying witness, as experience has shown that mistakes can occur where two or more witnesses have made positive identifications (R v Burchielli [1981] VLR 611).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s5	4.12 When to Give an Identification Evidence Warning	22. Even if the principal or sole defence goes to the credibility of the identifying witness (e.g. if the defence alleges that the identification evidence is fabricated, and the trial is conducted on that basis), it may be necessary to warn the jury about the dangers of identification evidence. This is due to the possibility that the jury will reject the defence argument. In such circumstances, the jury will then need to consider whether the identification evidence is reliable, and so will need to know about the potential dangers inherent in such evidence (Sindoni v R [2011] VSCA 195. But see R v Courtnell [1990] Crim LR 115; Shand v R [1996] 1 WLR 67).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s6	4.12 When to Give an Identification Evidence Warning	### Recognition Evidence	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s7	4.12 When to Give an Identification Evidence Warning	23. At common law, it was not always necessary to direct the jury about the dangers of acting on recognition evidence (see, e.g.* R v Wright* (No.2) [1968] VR 174; Arthurs v Attorney-General for Northern Ireland (1970) 55 Cr App R 161;* R v Marijancevic (1993) 70 A Crim R 272; Peck v Western Australia* [2005] WASCA 20; R v Lovett [2006] VSCA 5; R v Spero (2006) 13 VR 225). 24. Although a direction was not always necessary, there were circumstances in which the opportunity of the identifying witness to recognise a suspect was so limited, or the witness’s familiarity with a suspect was of such a short duration, that a full Domican direction was required (R v Spero (2006) 13 VR 225. See also R v Boardman [1969] VR 151; R v Turnbull [1977] QB 224;* WSJ v R* [2010] VSCA 339; Sindoni v R [2011] VSCA 195). 25. Whether a direction is necessary in a particular case will depend on all of the relevant circumstances, including: 1. the degree of familiarity of the witness with the accused; 1. the circumstances in which the accused was previously seen by the witness or known to the witness; and 2. the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime (R v Carr (2000) 117 A Crim R 272; Smith v The State of Western Australia [2005] WASCA 19; R v Spero (2006) 13 VR 225; R v Defrutos [2008] VSCA 55; WSJ v R [2010] VSCA 339; Sindoni v R [2011] VSCA 195).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s8	4.12 When to Give an Identification Evidence Warning	26. If the witness is very familiar with the person observed, there was an extended opportunity for observation, and the circumstances of the observation were such that there was little likelihood that the difficulties inherent in the identification process would lead to misrecognition, a direction may not need to be given (see, e.g. R v Carr (2000) 117 A Crim R 272; R v Lovett [2006] VSCA 5; R v Spero (2006) 13 VR 225;* WSJ v R* [2010] VSCA 339).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s9	4.12 When to Give an Identification Evidence Warning	### Similarity Evidence	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s10	4.12 When to Give an Identification Evidence Warning	27. In R v Benz (1989) 168 CLR 110, Mason CJ and Dawson J held that it is the unreliability of human recollection as a basis for recognition that produces the need for a warning about positive identification evidence. In the case of similarity evidence, there is no such recognition (the witness simply describes characteristics of the offender, or notes resemblances between the accused and the offender, but does not positively identify the accused as the offender), so there is no need for a warning (see also Festa v R (2001) 208 CLR 593 (McHugh J); R v Marijancevic (1993) 70 A Crim R 272; R v Hassan [2004] VSC 84. But cf. R v Benz (1989) 168 CLR 110 (Deane J); Festa v R (2001) 208 CLR 593 (Hayne and Kirby JJ)). 28. While there has been some debate about the need for a warning in relation to similarity evidence, the most recent cases in the area follow the judgment of Justice McHugh in Festa v R (2001) 208 CLR 593, holding that a direction is not always necessary in relation to such evidence (see, e.g. R v Cavkic (No 2) (2009) 28 VR 341; R v Debs [2005] VSCA 66; R v Campbell [2007] VSCA 189. But cf. Festa v R (2001) 208 CLR 593 (Hayne J); R v Theos (1996) 89 A Crim R 486 (Vic CA)). 29. Although a direction may not always be required, it may be necessary to provide some kind of direction depending on the circumstances (Festa v R (2001) 208 CLR 593; R v Debs [2005] VSCA 66; R v Campbell [2007] VSCA 189). 30. For example, if a witness claims that the facial features of the accused are similar to those of the offender, it may be appropriate to give a direction (Festa v R (2001) 208 CLR 593 (McHugh J)).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s11	4.12 When to Give an Identification Evidence Warning	31. A direction will usually not be necessary where the evidence is of similarity between inanimate objects rather than people (R v Cavkic (No 2) (2009) 28 VR 341).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s12	4.12 When to Give an Identification Evidence Warning	### Comparison Evidence 32. Comparisons can be undertaken in three ways: 1. by the jury comparing people or items which do not require particular knowledge or expertise to compare; 3. by witnesses comparing people or items about which they have greater knowledge than the jury, but which do not require particular expertise to compare; and 4. by witnesses comparing items about which they have particular expertise. 33. Only the first two types of comparison listed above are classified as "comparison evidence". Evidence comparing items about which a witness has particular expertise (e.g. fingerprints) should be treated as "opinion evidence" rather than "comparison evidence" (see 4.13.1 General Principles of Opinion Evidence). There is no need to give a direction about the dangers of identification or comparison evidence in such cases (R v Kotzmann [1999] 2 VR 123). ### Comparisons Undertaken by the Jury	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s13	4.12 When to Give an Identification Evidence Warning	34. It is not always necessary to direct a jury which has been invited to make a comparison of two people or items about the dangers of making such a comparison (R v Kotzmann [1999] 2 VR 123). 35. As the jury is not required to rely on their memory of a fleeting observation when making such a comparison, a direction about the dangers which arise from weaknesses in human perception and recollection will not be relevant (Nguyen v R (2002) 26 WAR 59). 36. While there may be problems resulting from matters such as a lack of clarity or an inadequate quantity of material for comparison, these difficulties will usually be obvious to juries who are well equipped to make allowances for such matters (R v Kotzmann [1999] 2 VR 123). 37. However, there may be circumstances in which it is necessary to give the jury directions about how to assess the evidence, and about the potential difficulties or dangers in making a comparison. For example, if the jury may too readily conclude that a voice on a tape matches the voice of the accused, due to similar foreign accents, a direction may be required about the risks of making such a misidentification, and the consequent miscarriage of justice that could arise (see, e.g. Bulejcik v R (1996) 185 CLR 375;* Nguyen v R* (2002) 26 WAR 59). 38. A direction may need to be given if the jury is asked to compare a person seen in a photograph or film taken during the crime with the accused (see, e.g.* R v Theos* (1996) 89 A Crim R 486 (Vic CA)). 39. If the jury is not asked to perform such a comparison, either explicitly or implicitly, it may not be necessary to give a direction. Mere speculation that they may make such a comparison is not sufficient to require a direction to be given (R v Phong (2005) 12 VR 17; [2005] VSCA 149). ### Comparisons Undertaken by Non-Expert Witnesses	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s14	4.12 When to Give an Identification Evidence Warning	40. It is not always necessary to direct the jury about the dangers of a witness’s evidence comparing people or items about which they have greater knowledge than the jury, but which do not require particular expertise to compare (e.g. that the gait of a person seen in video footage matches that of a person the witness knows well) (R v Kotzmann [1999] 2 VR 123; Nguyen v R (2002) 26 WAR 59). 41. However, as with comparisons made by the jury, there may be circumstances in which it is necessary to give the jury directions about how to assess the witness’s evidence, and about the potential difficulties or dangers in making a comparison (see, e.g. Bulejcik v R (1996) 185 CLR 375; Nguyen v R (2002) 26 WAR 59; R v Theos (1996) 89 A Crim R 486 (Vic CA)). ## Directions in Respect of Picture Identification Evidence 42. The directions specified under Jury Directions Act 2015 s 36 do not affect any other statutory obligation to instruct the jury about identification evidence, where the direction does not relate to the unreliability of the evidence (Jury Directions Act 2015 s 37). 43. Under* Evidence Act 2008 s 115(7), if picture identification evidence adduced by the prosecutor is admitted into evidence, the trial judge must, on the request of the accused: - if the picture of the accused was made after the accused was taken into custody in relation to the relevant offence/s – inform the jury that the picture was made after the accused was taken into that custody; or - otherwise – warn the jury that it must not assume that the accused has a criminal record or has previously been charged with an offence (Evidence Act 2008 *s 115(7)). ## No Set Formula for Charge	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s15	4.12 When to Give an Identification Evidence Warning	44. While an identification warning must contain the mandatory matters set out in s 36, the trial judge is not required to adopt any particular form of words when giving the warning (Jury Directions Act 2015 s 6). 45. The charge must be cogent, effective and cover those matters necessary for the particular case. It must be tailored to the circumstances of the case (R v Burchielli [1981] VR 611;* Domican v R* (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593; R v Campbell [2007] VSCA 189). 46. The strength of any necessary warning will depend to a large degree upon the extent to which the prosecution case relies on the identification evidence (R v Clune [1982] VR 1). 47. Not every matter needs to be referred to in every case – but the direction needs to be adequate, and must refer to the significant matters identified by the party requesting the warning which may make the evidence unreliable (Jury Directions Act 2015 s 36; R v Burchielli [1981] VR 611). 48. The judge must be careful that the directions do not rob the identification evidence of all probative value (Festa v R (2001) 208 CLR 593). 49. In fairness to the party adducing the evidence, the judge may make it clear that the warning is given because of the nature of the evidence, and that he or she is not expressing a personal opinion about it (R v Stewart (2001) 52 NSWLR 301). 50. At common law, it was recognised that a judge could tell the jury that "sometimes identification evidence is obviously correct, accurate and reliable". This direction did not impermissibly dilute the force of the warning (Milkins v R [2011] VSCA 93). It will be a matter for individual judges whether this statement is added to the statutory directions under the* Jury Directions Act 2015*. ## Obligation to Give Directions With Judicial Authority	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s16	4.12 When to Give an Identification Evidence Warning	51. At common law, judges were required to give the directions with judicial authority (Domican v R (1992) 173 CLR 555; Pinta v R [1999] WASCA 125). It is not sufficient for the judge to merely refer to a submission about the matter made by counsel when addressing the jury. The warning must come from the judge, with the authority of the judge being used to impress the significance of the matter on the jury (R v TJF [2001] NSWCCA 127; R v Yates [2002] NSWCCA 520; R v Sullivan [2003] NSWCCA 100). 52. The language of the Jury Directions Act 2015 draws a distinction between the obligation to “warn” the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, and the obligation to “inform” the jury of the other matters specified in s 36(3), such as the significant matters that may make the evidence unreliable, and the possibility that a witness is honest, but mistaken. It is unclear whether this narrows the scope of the common law obligation to give directions on identification evidence with judicial authority (see Audsley v R [2018] VSCA 162, [54], [67] and compare Burchielli v R [1981] VR 611 and R v Mendoza [2007] VSCA 120). ## Need for Caution	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s17	4.12 When to Give an Identification Evidence Warning	53. The Jury Directions Act 2015 requires the jury to be warned that there is a need for caution before accepting identification evidence, and in determining the weight to be given to such evidence, once it is accepted (Jury Directions Act 2015 s 36(3)(a)). 54. This differs from the position under the Evidence Act 2008, which required the jury to be warned that there is a "special" need for caution (Evidence Act 2008 ss 116, 165; R v Clarke (1997) 97 A Crim R 414). 55. Courts have previously noted that trial judges need to exercise care to ensure that any warnings which he or she gives do not render the identification evidence of no probative value (see* Festa v R (2001) 208 CLR 593; R v Clarke* (1993) 71 A Crim R 58).[^8] ## Multiple Witnesses 56. If multiple witnesses give identification evidence, the jury should be told that a number of such witnesses can all be mistaken (Jury Directions Act 2015 s 36(3)(d); R v Turnbull [1977] QB 224; R v Burchielli [1981] VR 611). 57. It may be necessary to warn a jury that two unsatisfactory or defective identifications do not necessarily support one another. However, there was debate over whether this direction was appropriate at common law (see* R v Burchielli* [1981] VR 611;* R v Dickson* [1983] 1 VR 227; R v Haidley and Alford [1984] VR 229 (Young CJ and Kaye J); R v Secombe [2010] VSCA 58. But cf. R v Weeder (1980) 71 Cr App R 228; R v Haidley and Alford [1984] VR 229 (Brooking J); R v Callaghan (2001) 4 VR 79). 58. If multiple witnesses give similarity evidence, the judge should usually instruct the jury against aggregating that evidence to establish identity. Similarity evidence cannot establish identity. Even if multiple people give similarity evidence, all that does is make it more likely that the accused resembles the offender (R v Clune (No 2) [1996] 1 VR 1).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s18	4.12 When to Give an Identification Evidence Warning	## Potential Causes of Unreliability 59. In giving an identification evidence warning pursuant to* Jury Directions Act 2015* s 36, the judge will need to inform the jury about the general causes of unreliability which are significant (Jury Directions Act 2015 s 36). 60. The purpose of this part of the direction is to inform the jury of matters which may be outside their general experience and understanding. Those matters need be stated only with such detail as is required to achieve that purpose (Kanaan v R [2006] NSWCCA 109). 61. The jury should be warned about matters that may cause the identification evidence to be unreliable (as opposed to matters that necessarily made that evidence unreliable) (R v Riscuta [2003] NSWCCA 6). 62. The matters that may cause identification evidence to be unreliable generally differ depending on the: - the type of evidence given (e.g. positive identification evidence, recognition evidence or similarity evidence); - the identification process used (e.g. identification parade, photo board identification or dock identification); - the mode of identification (e.g. visual, aural or tactile); - the subject matter identified (e.g. a person or an object). 63. In rare circumstances, expert evidence about particular dangers associated with certain types of identification evidence may be admissible (see, e.g. R v Dupas [2011] VSC 180). 64. The general dangers associated with particular types of identification evidence are examined below. ## General Dangers of Positive Identification Evidence 65. Positive identification evidence is seen to be "notoriously uncertain" due to the number of variables upon which it depends. These include: - the extent of the opportunity for making the observation; - the circumstances in which the observation was made; - the difficulties a person may have in recognising a person they observed only fleetingly, some time in the past; - the vagaries of human perception and recollection; and - the tendency of the mind to respond to suggestions (Alexander v R (1981) 145 CLR 395).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s19	4.12 When to Give an Identification Evidence Warning	66. Despite these uncertainties, identification evidence is seen to be particularly seductive, especially as it is often given by witnesses who appear honest and convincing. Judicial experience has shown that such witnesses can be mistaken (R v Burchielli [1981] VLR 611; Domican v R (1992) 173 CLR 555; Festa v R (2001) 208 CLR 593). 67. This risk arises because of the way in which evidence of identification depends on the witness receiving, recording and accurately recalling a subjective impression on the mind (R v Dickson [1983] 1 VR 227). 68. At common law, judges often told the jury that it is essential to distinguish between honesty and accuracy, and not to assume the latter because of a belief in the former (R v Dickson [1983] 1 VR 227). 69. Section 36 of the* Jury Directions Act 2015* focuses on the reliability of identification evidence, rather than the credibility of the witness giving the evidence. A witness can be credible but mistaken (see, e.g. R v Tran [2002] VSCA 29). ## General Dangers of Recognition Evidence	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s20	4.12 When to Give an Identification Evidence Warning	70. The traditional identification warning was developed in relation to witnesses who were previously unfamiliar with the person identified. Many of the dangers identified in that context may not be relevant to recognition cases (R v Burchielli [1981] VR 611; R v Marijancevic (1993) 70 A Crim R 272;* R v Conci* [2005] VSCA 173; R v Spero (2006) 13 VR 225; R v Trudgett (2007) 70 NSWLR 696). 71. For example, the difficulties associated with the identification process will generally not exist in relation to recognition evidence, as there is ordinarily no need for a formal identification process (such as an identification parade) (see, e.g.* R v Lovett* [2006] VSCA 5; R v Spero (2006) 13 VR 225;* R v Kelly* [2002] WASCA 134). 72. However, although recognition evidence may be more reliable than evidence identifying a stranger, mistakes in recognition of close relatives and friends are still sometimes made (R v Boardman [1969] VR 151; R v Turnbull [1977] QB 224;* R v Brotherton* (1992) 29 NSWLR 95). 73. Such mistakes can arise because the difficulties surrounding the observation of a crime can be just as great when observing a familiar person as an unfamiliar person (R v Lovett [2006] VSCA 5). 74. There is also a possibility of jumping to a conclusion as to the identity of the offender, if they resemble a known person (R v Lovett [2006] VSCA 5). 75. Despite the potential unreliability of recognition evidence, there is a danger that witnesses will propound their conclusions with force and conviction (R v Trudgett (2007) 70 NSWLR 696). 76. Furthermore, recognition evidence is likely to be given special weight by a jury, even where its reliability is dubious (R v Trudgett (2007) 70 NSWLR 696). 77. The amount of care and the nature of the direction will vary according to the familiarity of the witness with the person identified (Davies and Cody (1937) 57 CLR 170; R v Marijancevic (1993) 70 A Crim R 272).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s21	4.12 When to Give an Identification Evidence Warning	## General Dangers of Similarity Evidence	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s22	4.12 When to Give an Identification Evidence Warning	78. The general dangers identified in a similarity evidence warning will depend on the nature of the evidence. The charge should be tailored to the case, and should not be a mere recitation of the suggested directions (Festa v R (2001) 208 CLR 593). 79. If the evidence is very weak (e.g. I saw a man wearing a red shirt), it may only be necessary to point to whatever difficulties the defence asserts the witness may have had in observing and accurately recollecting the event (Festa v R (2001) 208 CLR 593 (Hayne J)). 80. If the evidence is of facial similarities between the accused and the offender, the same dangers may arise as in the case of positive identification evidence (Festa v R (2001) 208 CLR 593 (McHugh J)). 81. In warning the jury about the need for caution in determining whether to accept the evidence and the weight to be given to it, the judge may need to point out that evidence of similarity, if accepted, only shows consistency of appearance between the accused and the offender. It is not evidence that positively identifies the accused (Festa v R (2001) 208 CLR 593 (Gleeson CJ); R v Morgan [2009] VSCA 225). 82. It may also be appropriate to warn the jury against taking the step from accepting that there is a similarity between the accused and the offender, to positively identifying the accused due to this similarity (see* R v Benz* (1989) 168 CLR 110 (Deane J)). 83. It may also be desirable to direct the jury that evidence of similarity is not sufficient, by itself, to entitle them to convict. The judge may need to point out the limited role that can be played by such evidence (R v Morgan [2009] VSCA 225;* R v Athuai* [2005] VSC 192). 84. If the judge gives directions about the limited weight of similarity evidence, the judge may need to distinguish that part of the direction from any directions about the weight to give to any positive identification evidence (see* Festa v R* (2001) 208 CLR 593 (McHugh J); R v Camilleri (2001) 127 A Crim R 290; R v Morgan [2009] VSCA 225).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s23	4.12 When to Give an Identification Evidence Warning	85. If evidence can be interpreted as either positive identification evidence or as similarity evidence, it is for the jury to determine how that evidence should be treated. In such a case, the judge should:	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s24	4.12 When to Give an Identification Evidence Warning	- explain the distinction between positive identification evidence and similarity evidence; - explain the limited utility of similarity evidence; and - warn the jury that they cannot treat the evidence as positive identification evidence unless satisfied that the witness meant to identify the accused as the offender, as opposed to simply noting similarities between the accused and the offender (R v Hackett [2006] VSCA 138. See also* R v Fahad* [2004] VSCA 28). 86. However, if it is clear that the evidence should be treated in a particular way (e.g. that it is positive identification evidence rather than similarity evidence), the judge must instruct the jury accordingly. In the absence of any ambiguity, it is not for the jury to work out for themselves whether a piece of evidence is to be treated as positive identification evidence or similarity evidence (see, e.g. R v Theos (1996) 89 A Crim R 486 (Vic CA)). 87. While not technically incorrect, judges should avoid using the term "identification evidence" when charging the jury about similarity evidence. The terms "similarity evidence" or "resemblance evidence" are preferable (see, e.g. R v Razzak [2004] NSWCCA 62). ## General Dangers of Comparison Evidence	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s25	4.12 When to Give an Identification Evidence Warning	88. The dangers posed by comparison evidence differ from those posed by other types of identification evidence. For example, in relation to voice comparisons, instead of being concerned with matters such as familiarity with the voice or the distinctiveness of the voice, issues such as whether the quality and quantity of the material is sufficient to enable a useful comparison to be made will be more important (Bulejcik v R (1996) 185 CLR 375). 89. Very careful and strong directions will often be called for in the case of voice comparisons (Bulejcik v R (1996) 185 CLR 375 (Toohey and Gaudron JJ)).[^9] 90. Where a jury is asked to make a comparison between a recorded voice and the voice of the accused, the direction will explain the difficulty in making such a comparison (Bulejcik v R (1996) 185 CLR 375 (Toohey and Gaudron JJ); Nguyen v R (2002) 26 WAR 59; R v Madigan [2005] NSWCCA 170). 91. In relation to voice comparison, the similarity in circumstances in which the voices were spoken or recorded, and the number of similar words used, are likely to be significant matters which go to the determination of whether the evidence is reliable (Bulejcik v R (1996) 185 CLR 375). 92. The jury may need to consider whether there is a distinction between a live voice heard in court and a recorded voice (R v Madigan [2005] NSWCCA 170). 93. If the jury is asked to compare voices with foreign accents, they should be told of the difficulties involved in distinguishing between two such voices with which they are not familiar. In the absence of such a direction, the jury might too readily conclude that a foreign accent on a tape is that of the accused where the accents are similar (Bulejcik v R (1996) 185 CLR 375 (Toohey and Gaudron JJ)). ### General Dangers of Photographic Identification Evidence 94. Identification from a photograph may be unreliable due to the differences between photographic representations and nature:	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s26	4.12 When to Give an Identification Evidence Warning	- photographs are two-dimensional, static and limited (Alexander v R (1981) 145 CLR 395;* Roser v R (2001) 24 WAR 254; R v Campbell* [2007] VSCA 189); - photographs do not depict manner of moving, posture, variety of facial expression, complexion, body size, body shape, colouring, nor many other subtle physical characteristics that an actual sighting conveys to the mind (Roser v R (2001) 24 WAR 254); - photographs may be black and white (Alexander v R (1981) 145 CLR 395); - photographs often provide a clear and well-lit picture of the subject in circumstances very different from the initial observation (Alexander v R (1981) 145 CLR 395; R v Campbell [2007] VSCA 189); - photographs may hazily resemble the person seen, and lead to a false identification (Roser v R (2001) 24 WAR 254; R v Campbell [2007] VSCA 189); - photographs may be digitally edited without the jury or anyone else realizing.	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s27	4.12 When to Give an Identification Evidence Warning	95. In addition, the presentation of a group of photographs to an identifying witness may place that witness under some subconscious pressure to pick out a photograph of a suspect who looks like the offender, notwithstanding that the witness is unable to positively identify the subject of the photograph as the offender (R v Campbell [2007] VSCA 189;* Pitkin v R* (1995) 130 ALR 35). 96. The accused may also be disadvantaged by the process of photo board identification. In most cases, he or she will not have been present for the identification, and so will not have first hand information about the way in which the witness identified the photograph (cf. identification parades). The accused must therefore rely on cross-examination of witnesses for knowledge about the conditions of the identification, and what safeguards against error were taken (Alexander v R (1981) 145 CLR 395; R v Clarke (1997) 97 A Crim R 414 (NSW SC); Roser v R (2001) 24 WAR 254; R v Campbell [2007] VSCA 189). 97. A judge may have good reasons for not warning the jury about some of the deficiencies of photo board identification where the accused has refused to participate in an identification parade. For example, it may not be appropriate to direct the jury about the problems arising from the accused’s absence from the identification process, or to instruct the jury about the differences between the two processes of identification (see R v Campbell [2007] VSCA 189). ## General Dangers of Single Suspect, Court and Dock Identification	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s28	4.12 When to Give an Identification Evidence Warning	98. If the accused was identified in circumstances where the witness was presented with a single suspect, this so greatly increases the liability to mistake as to make it extremely dangerous to assign any probative value to the identification evidence (R v Burchielli [1981] VR 611). 99. Similar dangers attend an identification in the precincts of the court. At common law, it was considered not sufficient to avoid discussing the issue out of a wish to avoid emphasising the identification (R v Bedford (1986) 5 NSWLR 711;* Festa v R (2001) 208 CLR 593 (Kirby J)). 100. If a dock identification takes place,[^10] the jury may be warned that it is of no probative value (as the witness will inevitably point out the person who is on trial), and that it has only been done as a formality (in order to complete the picture and to avoid any speculation as to why it was not done) (see, e.g. Jamal v R* (2000) 182 ALR 307; Alexander v R (1981) 145 CLR 395; R v Burchielli [1981] VR 611).[^11] 101. The risks associated with dock identification do not necessarily apply to identification of chattels in court. For example, provided that the witness is not asked leading questions, he or she will usually not feel compelled to positively identify any particular chattel in the same way that he or she may feel compelled to positively identify the accused (Evans v R (2007) 235 CLR 521). ## General Dangers of Voice Identification 102. The risk of mistake in identifying a voice is seen to be at least as great as that involved in visual identification (Festa v R (2001) 208 CLR 593; Li v R (2003) 139 A Crim R 281). 103. Some factors that may be relevant in relation to the voice identification process include:	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s29	4.12 When to Give an Identification Evidence Warning	- the enhanced difficulty of identifying voices (cf. faces); - the risk that a person may have sought to disguise his or her voice; - the fact that voices can vary depending on the purpose for which they are being used; - the clarity with which the voice was heard on the relevant occasions; - the witness’s familiarity with the voice; - the distinctiveness of the voice; - the possibility of mistaking one accented voice for another (R v Callaghan (2001) 4 VR 79; see also Bulejcik v R (1996) 185 CLR 375; Festa v R (2001) 208 CLR 593; R v Madigan [2005] NSWCCA 170;* R v E J Smith* (1986) 7 NSWLR 444; R v Brownlowe (1986) 7 NSWLR 46). 104. The jury should be told to allow for the possibility that an offender may have sought to disguise his or her voice (R v E J Smith (1986) 7 NSWLR 444;* R v Brownlowe* (1986) 7 NSWLR 461). 105. The jury should be told that mistakes can be made even in the voice recognition of close friends and relatives (R v Brotherton (1992) 29 NSWLR 95; R v Turnbull [1977] QB 224; R v Bueti (1997) 70 SASR 370;* R v Madigan* [2005] NSWCCA 170). 106. The jury should not be told that voice identification is less reliable if a witness cannot describe the basis on which a match is made (e.g. by describing the intonation, rapidity of speech and cadence). Voice identification may be accurate even though a person is unable to analyse and explain the characteristics of the voice (Nguyen v R (2002) 26 WAR 59). ## General Dangers of Negative Identification Evidence 107. Many of the causes of unreliability which apply in the context of positive identification evidence also apply to negative identification evidence. For example, just as positive identification evidence may be affected by confusion and displacement, or contaminated by conversations after the event, so may negative identification evidence (Ilioski v R [2006] NSWCCA 164). 108. Some matters which may affect the reliability of negative identification evidence include:	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s30	4.12 When to Give an Identification Evidence Warning	- whether the witness knew the person identified; - the duration of the circumstances in which the identification occurred; - whether it is possible that the observer was unconsciously influenced by publicity; and - the quality of the image used to make the identification and whether that was a good likeness of the relevant person (see, e.g. R v Rose (2002) 55 NSWLR 701). 109. If a direction is given, it will not be relevant to inform the jury that mistaken identification evidence has resulted in innocent people being convicted (Jury Directions Act 2015 s 36; R v Rose (2002) 55 NSWLR 701). 110. However, in most cases where negative identification evidence is adduced the jury should be instructed about how the burden and standard of proof operates in relation to this evidence (Kanaan v R [2006] NSWCCA 109; Mule v R [2002] WASCA 101; R v Johnson (2004) 89 SASR 294). This requires that the judge: - emphasise that the jury has to be satisfied beyond reasonable doubt that it was the accused who committed the offence charged; and - make it clear that the jury cannot be satisfied beyond reasonable doubt that the crime was committed by the accused if there remains a reasonable possibility that the crime was committed by someone else. 111. It was suggested in Kanaan v R [2006] NSWCCA 109 that an appropriate direction would be that "the Crown must remove or eliminate any possibility that the crime was committed by someone else, as well as satisfy you, on the evidence on which it relies, that beyond reasonable doubt the accused committed the offence" (see also* Ilioski v R* [2006] NSWCCA 164). 112. Although this formulation was suggested by the Court, it was made clear that no specific formula is required. All that is needed is for the judge to make it clear to the jury that there cannot be proof beyond reasonable doubt if there remains a reasonable possibility that the accused is not guilty (Kanaan v R [2006] NSWCCA 109;* Ilioski v R* [2006] NSWCCA 164). 113. The precise content of the direction will depend on the type of negative identification evidence adduced. For example:	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s31	4.12 When to Give an Identification Evidence Warning	- where a witness positively identifies a person as the offender who is not the accused, the judge may give modest directions about the need for caution when assessing the evidence, the circumstances of the identification and that witnesses may be honest but mistaken; - where there is contradictory identification evidence, the judge will need to be direct the jury on the need for caution in assessing the evidence, contrast the different circumstances of the two witnesses, the risk of mistaken identification evidence and the interaction between positive and negative identification evidence (see below); - where the witness has failed to identify the accused, then identification evidence directions are no likely to be appropriate and the judge should instead refer to the failure to identify as a matter casting doubt on the prosecution case. 114. In all cases however, the judge must remind the jury that the prosecution bears the onus of proof and that the accused does not need to prove the negative identification evidence. Instead, the evidence is a factor that, depending on the jury’s view of the evidence, may raise a reasonable doubt about the prosecution’s case. ### Directions where Positive and Negative Identification Evidence are Adduced 115. Where both negative and positive identification evidence is adduced, the judge may need to direct the jury about the relationship between the two types of evidence. In particular, the judge may need to direct the jury about: - the impact the negative identification evidence has on the positive identification evidence; and - the relationship between the positive and negative identification evidence warnings. 116. The existence of contradictory, negative identification evidence, may be a significant matter which makes the positive identification evidence unreliable (see Beresi v R [2004] WASCA 67; Mule v R [2002] WASCA 101). 117. Similarly, the failure of a witness to select the accused from a previous photoboard or identification parade may cast doubt on the reliability of the subsequent identification (see Beresi v R [2004] WASCA 67). 118. The best approach for a judge to take in directing the jury on the relationship between the warnings will depend on the circumstances of the case: - in some cases it will be convenient for the judge to set out separately the reasons for the warnings for each category of identification evidence; - in other cases it will be disadvantageous to the accused to have all of the reasons for the warnings given twice – once for the positive identification evidence and once for the negative identification evidence (Kanaan v R [2006] NSWCCA 109).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s32	4.12 When to Give an Identification Evidence Warning	### Specific Causes of Unreliability	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s33	4.12 When to Give an Identification Evidence Warning	119. In addition to general dangers about particular forms of evidence, the judge will also need to inform the jury about any specific causes of unreliability which are significant (Jury Directions Act 2015 s 36). 120. These specific matters should be identified as part of the warning about identification evidence, and rather than in some other part of the judge’s directions (R v Bint & Butterworth 19/7/1996 CA SA). 121. If matters referred to by counsel reasonably can be regarded as significant matters undermining the reliability of the identification evidence, the judge must inform the jury of those matters (Jury Directions Act 2015 s 36(3)(b). See also Domican v R (1992) 173 CLR 555; R v Dupas (2009) 28 VR 380). 122. It is insufficient for a judge to simply put a number of questions to the jury to consider, without relating them to the particular circumstances of the case (R v Ryan 3/8/1995 CA Vic). 123. The judge may point out significant matters supporting an identification, as long as the weaknesses are also highlighted (Jury Directions Act 2015 s 36(3)(b); R v Fox (No 2) [2000] 1 Qd R 640. See also R v Davies (2005) 11 VR 314). 124. Even if a matter of significance would be obvious to the jury, it should be identified (Ilioski v R [2006] NSWCCA 164). 125. However, a judge is only required to direct the jury about matters concerning the reliability of identification evidence. The identification evidence direction does not address matters such as bias or motives to lie (Ilioski v R [2006] NSWCCA 164).[^12] 126. Judges need not identify every possible weakness in the particular identification evidence in the case. He or she is only required to identify any weakness which is significant. On this basis, a judge must not overlook any evidence the jury may regard as having some cogency, which would be favourable to the accused in the resolution of the identification issue (Jury Directions Act 2015 s 36(3)(b); R v Bint & Butterworth 19/7/1996 CA SA).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s34	4.12 When to Give an Identification Evidence Warning	127. The fact that there is evidence that tends to support an identification does not diminish the importance of the direction as to identification. In some circumstances it may actually increase the need for caution (WSJ v R [2010] VSCA 339).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s35	4.12 When to Give an Identification Evidence Warning	### Specific Factors Affecting the Reliability of Identification Evidence 128. Factors affecting the reliability of identification evidence in a particular case include: - the opportunity to observe the person subsequently identified; - the nature of the relationship between the witness and the person identified; - the length of time between the incident and the identification; and - the nature and circumstances of the identification (Domican v R (1992) 173 CLR 555). 129. Factors that may be relevant to the initial observation include: - the length of opportunity for making the observation (R v Clune [1982] VR 1; Domican v R (1992) 173 CLR 555); - the position of the witness and the person identified (R v Clune [1982] VR 1; R v Dickson [1983] 1 VR 227); - the distance of the witness from the person identified (R v Turnbull [1977] QB 224); - the lighting and weather (R v Clune [1982] VR 1;* R v Dickson* [1983] 1 VR 227); - any impairments to the observation, such as passing people or traffic (R v Turnbull [1977] QB 224); - the exposure of the witness to stress or fear (R v Clune [1982] VR 1; R v Dickson [1983] 1 VR 227. But see Winmar v Western Australia (2007) 35 WAR 159); - whether the witness was influenced by drugs or alcohol, or by other factors such as fatigue (Peck v Western Australia [2005] WASCA 20); - whether the circumstances were such as to cause the witness to be left with an impression of the features of the offender (R v Clune [1982] VR 1). 130. Factors that may be relevant to the nature of the relationship between the witness and the person observed include: - whether the witness was previously acquainted with the person observed (Domican v R (1992) 173 CLR 555); - how well the witness knew the observed person (R v Carr (2000) 117 A Crim R 272); - the circumstances of any previous acquaintance (R v Carr (2000) 117 A Crim R 272). 131. Factors that may be relevant to the identification process include:	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s36	4.12 When to Give an Identification Evidence Warning	- the length of time between the incident and the identification (R v Clune [1982] VR 1; Domican v R (1992) 173 CLR 555;* R v Dupas* (2009) 28 VR 380); - the absence of an identification parade and the general conduct of the identification process (R v Preston [1961] VR 761; R v Clune [1982] VR 1; R v Burchielli [1981] VR 611); - whether the witness had heard a description of the suspect given before attempting an identification (R v Ryan 3/8/1995 CA Vic); - any imbalances in the identification process (such as only one of the suspects having a moustache, or having only one non-custodial photograph to choose from) (R v Clune [1982] VR 1); - whether the witness was encouraged to identify a particular person in any way (R v Davies (2005) 11 VR 314); - whether there were any witnesses to the identification process (Alexander v R (1981) 145 CLR 395; Roser v R (2001) 24 WAR 254). 132. Other factors that may be relevant to the issue include: - the perceptiveness of the witness (R v Clune [1982] VR 1;* R v Dickson [1983] 1 VR 227); - the dangers of cross-racial identification (R v Dodd* (2002) 135 A Crim R 32); - errors in describing the offender prior to the identification (R v Turnbull [1977] QB 224;* R v Vincec* (1990) 50 A Crim R 203 (Vic CA)); - evidence which points to a person other than the accused being the offender (R v Fahad [2004] VSCA 28);[^13] - incentives to cooperate with the police (R v Theos (1996) 89 A Crim R 486 (Vic CA)); - in the case of object identification, the commonness of the object identified (R v Theos (1996) 89 A Crim R 486 (Vic CA)).	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s37	4.12 When to Give an Identification Evidence Warning	133. There is no immutable principle requiring the discussion of any particular one of these matters – it will depend on the circumstances. This is, however, subject to the requirement that a judge inform the jury of the significant matters which specified by the party requesting an identification evidence direction, unless there are good reasons for not doing so (Jury Directions Act 2015 ss 15, 36; see also R v Dodd (2002) 135 A Crim R 32). ## The Displacement Effect 134. One specific cause of unreliability that a judge may need to direct the jury about is the "displacement effect" (see, e.g. Alexander v R (1981) 145 CLR 395; Roser v R (2001) 24 WAR 254;* DPP v Douglas Jensen* [2006] VSC 179; R v Dupas (2009) 28 VR 380). 135. The "displacement effect" can occur when a witness initially identifies a person from a photograph, and then subsequently identifies the same person at an identification parade. In such circumstances, the witness’s memory of the photograph viewed may displace his or her memory of the original sighting of the offender. Any subsequent face-to-face identification may be tainted as a result of this "displacement effect", as the witness may unwittingly compare the accused with the remembered photograph, rather than with his or her memory of the original sighting (Alexander v R (1981) 145 CLR 395; Roser v R (2001) 24 WAR 254; DPP v Douglas Jensen [2006] VSC 179).[^14] 136. Thus, the "displacement effect" may be relevant where: - a person is initially identified from a photograph (or other representation); - the same person is subsequently identified at an identification parade; and - evidence of that identification parade is admitted (Alexander v R (1981) 145 CLR 395; Roser v R (2001) 24 WAR 254; DPP v Douglas Jensen [2006] VSC 179)	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s38	4.12 When to Give an Identification Evidence Warning	137. In such cases, the "displacement effect" may constitute a significant matter which affects the reliability of the identification evidence, warranting a warning cautioning against accepting the evidence, and if the evidence is accepted, cautioning against the weight to be given to that evidence (Jury Directions Act 2015 s 36(3); see e.g. R v Burchielli [1981] VR 611). ## Picture Identification 138. Section 115 of the Evidence Act 2008 provides that certain directions must be given in relation to "picture identification evidence" that is admitted into evidence. 139. These directions must be given if: - the "picture identification evidence" is adduced by the prosecution; and - a request for the directions is made by the accused or defence counsel (Evidence Act 2008 s 115(7)). 140. The content of the direction depends on whether the relevant picture was made before or after the accused was taken into custody: - if it was made after the accused was taken into custody, the jury must be informed of that fact; - if it was made before the accused was taken into custody, the jury must be warned not to assume that the accused has a criminal record, or has previously been charged with an offence (Evidence Act 2008 s 115(7)). 141. These directions are directed to the problems associated with the use of ‘mug shots’ – pictures which give the impression that the person depicted was known to the police (R v Maklouf [1999] NSWCCA 94). 142. 4.12.2 Charge: Photographic Identification includes a section addressing this issue in the context of photographic identification. This section can be modified for other forms of picture identification. ## Failure to Hold an Identification Parade 143. If photographic identification evidence is admitted where it would have been reasonable and practicable to arrange for an identification parade to be held instead, it may be appropriate to:	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12-c7-s39	4.12 When to Give an Identification Evidence Warning	- tell the jury such an identification parade could have been held; - explain the differences between the identification processes; - advise the jury that the accused has been deprived of the benefits of an identification parade; - advise the jury that the accused may have lost the advantage they would have gained from an inconclusive parade; and - direct the jury that it should take account of these facts in its assessment of the whole case, giving them such weight as it thinks fair (Roser v R (2001) 24 WAR 254). ## Refusal to Participate in an Identification Parade 144. If evidence is given that the accused refused to participate in an identification parade, the judge should advise the jury that he or she had a right not to participate, and that the exercise of that right must not lead to any conclusion as to guilt (R v McCarthy (1993) 71 A Crim R 395; R v Davies (2005) 11 VR 314). 145. The direction should be given in very strong terms, explaining to the jury that it would make a mockery of our legal system to give the accused the right not to participate, but then to penalise them for relying on that right by allowing an adverse inference to be drawn from its exercise. 146. This direction should be given as soon as the evidence is given and, if necessary, again in the summing up (R v McCarthy (1993) 71 A Crim R 395; R v Davies (2005) 11 VR 314). Last updated: 25 June 2024	[^6]: Department of Justice, Jury Directions: the Next Step, 2013 p38. [^7]: Department of Justice, Jury Directions: the Next Step, 2013 p12. [^8]: Jury Directions: The Next Step, Criminal Law Review, December 2013, p38. [^9]: See "General Dangers of Voice Identification" below for further information concerning identification by voice. [^10]: Dock identification occurs when a person is asked to look either at the dock containing the accused, or the area where the accused might be expected to be sitting, and then make an identification. Where a witness simply happens to be in the same courtroom as the accused, and spontaneously recognises him or her, this is not "dock identification" (R v Rich (Ruling No. 6) [2008] VSC 436. See also R v Williams [1983] 2 VR 579). [^11]: Dock identifications are not usually permitted, unless they are simply confirming an acceptable prior out-of-court identification (Jamal v R; R v Gorham (1997) 68 SASR 505; Murdoch v R [2007] NTCCA 1). [^12]: There may, however, be a need for separate warnings concerning such matters. [^13]: See Negative Identification Evidence for a discussion of the directions to be given when evidence is adduced identifying a person other than the accused as the offender, or stating that the accused is not the offender. [^14]: While the cases in this area generally refer to the risk that the memory of a photograph will displace the memory of the original sighting, memories of other types of representation (e.g. identikit pictures) may create the same risk.	112	4 – Evidentiary Directions	4.12 Identification Evidence.docx	269	https://www.judicialcollege.vic.edu.au/media/785/file
4.12.1-c1-s1	4.12.1 Charge: Identification Evidence	# 4.12.1 Charge: Identification Evidence When to Use this Charge This charge may be used where: i) A witness gave identification evidence;[^2] and ii) The prosecution or defence counsel has requested a direction regarding the identification evidence and there are no good reasons for not doing so; or iii) Despite the fact that neither party has requested a direction, there are substantial and compelling reasons for giving the direction ## Introduction Identification is an important issue in this case. The case against NOA depends, to a significant extent, on evidence claiming to identify [outline the nature of the identification evidence in the case]. Before you decide whether to accept this evidence, I must give you some warnings about identification evidence.	[^2]: This charge has been constructed for use in cases where it is the accused that has been identified. If it is another party, or an object, that has been positively identified, the charge should be modified accordingly.	113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.1-c2-s1	4.12.1 How are People Identified?	## How are People Identified? Before I give you these warnings, and to help you understand the reason why I am giving you these warnings, I will briefly explain how people are identified. ## Positive identification evidence/similarity evidence [If the identification evidence comprises positive identification evidence or similarity evidence, add the following shaded section.] There are three stages that are involved whenever a positive identification is made and a witness may make an error at each stage. First, the witness must have observed somebody [insert relevant act]. Second, the witness must have retained an image of that person in his or her mind until the time of the identification. Third, the witness must have later seen NOA, or a picture of NOA, and identified him or her as being the person seen [insert relevant act].[^3] ## Recognition evidence [If the identification evidence is a form of recognition evidence, add the following shaded section.] There are two stages that are involved whenever a person claims to recognise another person and a witness may make an error at each stage. First, the witness must have observed somebody [insert relevant act]. Second, the witness must have accurately recognised that person as someone the witness knew. ## Comparison evidence [If the identification evidence constitutes comparison evidence, add the following shaded section.] There are three stages that are involved whenever a comparison is made and a witness may make an error at each stage. First, the witness must have heard somebody [insert evidence relating to the initial recording]. Second, the witness must have retained an impression of that person’s voice in his or her mind until the time of the identification. Third, the witness must have later heard the voice of NOA, or a recording of the voice of NOA, and identified him or her as being the voice heard in the original recording. ## Negative identification evidence [If the identification evidence constitutes negative identification evidence, add the following shaded section.] There are three stages that are involved whenever an identification of this nature is made and a witness may make an error at each stage. First, the witness must have observed somebody [insert relevant act]. Second, the witness must have retained an image of that person in his or her mind until the time of the identification. Third, the witness must have later seen NOA, or a picture of NOA, and stated that he or she was not the person seen [insert relevant act].	[^3]: Where the relevant identification evidence constitutes similarity evidence, this paragraph will need to be augmented. A suggested substitute is "First, the witness must have observed somebody [insert relevant act]. Second, the witness must have retained an image of that person in his or her mind until the time of the identification. Third, the witness must have later seen the accused, or a picture of the accused, and identified a similarity between him or her and the person seen [insert relevant act]."	113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.1-c3-s1	4.12.1 General Dangers of Identification Evidence	## General Dangers of Identification Evidence Identification evidence is potentially unreliable. For that reason, you must exercise caution in determining whether to accept the evidence and, if you do accept it, the weight that you accord to that evidence. One of the reasons that identification evidence is potentially unreliable is that while a witness may honestly believe that his or her evidence is accurate when he or she is actually mistaken. And the mistaken evidence of a witness may be convincing. [If there are multiple identification witnesses, add the following shaded section.] You should also realise that a number of different witnesses may all be mistaken in their identification. [If the risk of mistaken identification evidence leading to an innocent person being convicted is relevant, add the following shaded section. Note that this will not be relevant in the case of negative identification evidence.] The experience of the law has shown that witnesses have given mistaken identification evidence which has resulted in innocent people being convicted. I will now turn to discuss the significant matters in this case which may make the identification evidence unreliable.		113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.1-c4-s1	4.12.1 Significant Matters that May Make the Evidence Unreliable	## Significant Matters that May Make the Evidence Unreliable Having given you that general warning about identification evidence, I now want to look at some of the specific factors that may affect the reliability of the evidence in this case. Here, there are [insert number of significant factors] that may be relevant to your assessment of the reliability of the identification evidence. These are [insert significant factors affecting reliability, e.g. the circumstances in which the offender was observed; the characteristics of the witness who gave evidence; and the way in which the accused was identified]. You should examine each of these factors closely when deciding whether to accept the identification evidence. I will now look at these factors in more detail. ## Circumstances of Observation [If the circumstance in which the witness made his or her observation is a significant matter which may make the evidence unreliable, add the following shaded section.] You should examine the circumstances in which the offender was observed. You should consider what opportunity for accurate observation existed. Some of the questions you should ask yourself include: [Isolate and identify the significant matters raised by counsel regarding the observation which may make the evidence unreliable, or which are otherwise necessary to include.] - For how long did the witness observe the person? - How far away was the witness from what s/he was observing? - What was the angle of observation? For example, did the witness see the person’s face or only his/her back? - Had the witness ever seen the person s/he was observing before? - What was the light like? - Did anything get in the way of the witness’s view, such as passing people or traffic? - Did the witness have a reason for trying to observe the person involved and to remember his/her characteristics? - Did the person observed have any distinguishing features or characteristics which would make it likely that the witness would remember him/her? For example, did s/he have a scar or a tattoo? ## Factors Concerning the Witness [If there are significant matters concerning the witness who made the identification which may make the evidence unreliable, add the following shaded section.] You must also consider the characteristics of the witness who gave the identification evidence. In that context, some of the questions you should ask yourself include: [Isolate and identify any significant witness-related factors raised by counsel that may make the evidence unreliable, or which are otherwise necessary to include.]		113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.1-c4-s2	4.12.1 Significant Matters that May Make the Evidence Unreliable	- Is it possible to assess the quality of this witness as an observer? - Was the witness stressed or fearful at the time of the observation? If so, what effect would this stress have had on him/her? For some people, their powers of observation increase under stress. Others "black out" and their powers of observation diminish. You need to decide how the witness is likely to have reacted in this case. - Were there any other factors that could have affected the witness’s powers of observation, such as drugs or alcohol consumption, or fatigue? ## Factors Concerning the Identification [If the way in which the accused was identified raises significant matters which may make the evidence unreliable, add the following shaded section.] You must consider the way in which NOA was identified/similarities between the person observed and NOA were noted. Some of the questions you should ask yourself include: [Isolate and identify any significant factors about the identification process raised by counsel that may make the evidence unreliable, or which are otherwise necessary to include.] - Did the witness give a description of the offender before identifying the accused? If so, does the description match the accused? - Is the witness relying too heavily on a particular memorable feature or characteristic of the accused in identifying him/her? - How long was there between the incident and the identification? Was it likely that the witness’s memory was affected by any delay? - Was the identification process conducted fairly? For example, did the other people in the [parade/photoboard] look sufficiently similar to the accused? - Did the witness hear a description or see a picture of the accused before attempting to identify the offender? [If this occurred, and the risk of the "displacement effect" occurring is significant, the judge will need to warn the jury about that effect. See 4.12.2 Charge: Photographic Identification* for an example of such a warning.*] - Was the witness influenced in any other way to identify the accused – for example, by the behaviour of the police?		113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.1-c4-s3	4.12.1 Significant Matters that May Make the Evidence Unreliable	## Familiarity with the Accused [If there are matters concerning the familiarity of the witness who made the identification with NOA, and these are significant matters which may make the evidence unreliable, add the following shaded section.] You must consider how well the witness knew the accused. Some of the questions you should ask yourself include: [Isolate and identify any significant factors about the witness’s familiarity with the accused raised by counsel that may make the evidence unreliable, or which are otherwise necessary to include.] - How did the witness know the accused? - How often and in what circumstances had the witness previously seen the accused? Was s/he very familiar with the accused’s appearance? - When had the witness last seen the accused? Had the accused’s appearance changed since that time? ## Quality of the Material [If the identification involves a non-expert giving comparison evidence, and the quality of the material being compared is a significant factor which may make the evidence unreliable, include the following shaded section.] You must consider the quality of the material which the witness was comparing. Some of the questions you should ask yourself include: [Isolate and identify any significant factors raised by counsel about the comparison made that may make the evidence unreliable, or which are otherwise necessary to include.] - [If two recordings are being compared] In what circumstances were the recordings made? Were those circumstances very different? - [If one recording is being compared with a live voice] Does the fact that the witness compared a recording with a live voice affect his/her ability to make an accurate comparison? - Was there enough material to enable the witness to make a proper comparison?		113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.1-c5-s1	4.12.1 Nature of the Voices	## Nature of the Voices [If the identification involves a non-expert giving comparison evidence, and the nature of the voices being compared is a significant matter which may make the evidence unreliable, include the following shaded section.] You must consider the nature of the voices that were compared by the witness. Some of the questions you should ask yourself include: [Isolate and identify any significant factors raised by counsel about the comparison made that may make the evidence unreliable, or which are otherwise necessary to include.] - Are the voices particularly distinctive? - Did the voices use similar words? Did they have a similar manner of speaking? - Is it possible that either or both of the speakers were trying to disguise their voice? - [If the voices spoke with a foreign accent] Did the witness rely too heavily on the fact that both voices spoke with a foreign accent? It can be very difficult to distinguish between two unfamiliar voices that speak with a similar accent. ## Limitations of Similarity Evidence [If the identification evidence involved the witness saying that the accused appeared to be similar to the relevant person, include the following shaded section.] You must consider the limitations of what NOW said. S/he has not given evidence actually identifying NOA as the person who [insert relevant act]. Instead, s/he has given evidence that NOA resembles the person who [insert relevant act]. Even if you accept this evidence as true, it only shows that NOA’s [appearance/voice/other characteristic] is consistent with that of the offender. It does not show that s/he is the offender. You must not conclude from this evidence alone that NOA was the person who [insert relevant act]. I am not saying that you should ignore this evidence of similarity between NOA and the offender. You can use it together with the other evidence in the case to help you determine whether or not NOA is the person who [insert relevant act]. However, by itself this evidence is not enough to identify NOA as the offender. ## Miscellaneous Factors [If there are any other significant factors that do not fall within categories already discussed, add the following shaded section.] Finally, you should consider any other significant factors that may affect the reliability of the identification evidence. In this case, [insert evidence about any other significant factors raised by counsel that may reasonably be regarded as undermining the reliability of the evidence, or which are otherwise necessary to include].		113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.1-c6-s1	4.12.1 Summary	## Summary To summarise, it is important that you take care in determining whether you accept identification evidence, and if you do accept it, in deciding what weight to give to that evidence. If, after careful examination of the identification evidence, and in light of all of the circumstances and other evidence given in the case, you find that the accused was correctly identified, then you can use the evidence in reaching your verdict. Last updated: 29 June 2015		113	4 – Evidentiary Directions	4.12.1 Charge - Identification Evidence.docx	292	https://www.judicialcollege.vic.edu.au/media/566/file
4.12.2-c1-s1	4.12.2 Charge: Photographic Identification	# 4.12.2 Charge: Photographic Identification If the accused has been identified from a photograph, add this section where indicated in the primary charge. In this case, as NOA was [initially] identified from a photograph, I need to give you an additional warning about photographic identification evidence. This sort of evidence may be unreliable due to the differences between photographs and real life. For example, photographs are two-dimensional, and do not show the way a person moves, the range of their facial expressions, their body shape, or many of the other characteristics that can help you to identify a person. The photograph used to identify the accused may also have been taken in very different circumstances from those in which the offender was observed. For example, the light in the photograph may be much better than it was at the time of the crime. These factors can increase the risks of misidentifying the offender, who may look like the accused as seen in a photograph, but may look different when viewed face-to-face. You should therefore treat photographic identification evidence with special care. ## Lack of Witnesses [If the conduct of the identification process is in issue, the following shaded section may be added.] There is an additional problem with photographic identification. As the accused was not present during the identification process, s/he is unlikely to have any first-hand information about the way in which his/her photograph was selected. Instead, s/he can only rely on the cross-examination of the people who were present to gain any information about the conditions in which the identification took place, and what safeguards against error were taken. You should take this disadvantage into account when considering the evidence. ## The "Displacement Effect" [If the displacement effect is in issue, add the following shaded section.[^2]] I must also warn you about what is known as the "displacement effect". This effect can occur when a person is shown a photograph of a suspect before identifying them in a parade. The witness’s memory of the person observed committing the crime can be effectively replaced by a memory of that photograph. In any later face-to-face identification, there is a risk that the witness might unintentionally identify the accused because his/her appearance matches the remembered photograph, rather than matching the person originally seen. In other words, the witness will have identified the person previously seen in the photograph, instead of the person seen committing the crime. Because of this risk, it may be dangerous for you to treat the identification parade evidence as having any significant value.	[^2]: While this part of the charge has been designed for use in cases where there is a risk that a witness’s memory of the offender has been displaced by a memory of a photograph, a modified version may be used where there is a risk that the witness’s memory has been displaced by something else.	114	4 – Evidentiary Directions	4.12.2 Charge - Photographic Identification.docx	298	https://www.judicialcollege.vic.edu.au/media/788/file
4.12.2-c1-s2	4.12.2 Charge: Photographic Identification	## Section 115 Direction (The "Rogues’ Gallery Effect") [If a request for a s 115 direction* has been made by the defence, or the jury has become aware that the accused was identified by reference to a photograph held by police and the judge finds it necessary to address any possible prejudice, one of the following directions should be given.] [If the photograph was taken before the accused was taken into custody, add the following shaded section.] You may have noticed that NOA was identified from a photograph held by the police. You are not to attach any significance to this fact. The police have photographs of many different people for a variety of reasons. You must not assume that, because the police had a photograph of NOA, s/he has a criminal record or has previously been charged with an offence. In fact, you must not draw any conclusions from the fact that the police had a photograph of NOA. [If the photograph was taken after the accused was taken into custody, add the following shaded section.*] You may have noticed that NOA was identified from a photograph held by the police. You are not to attach any significance to this fact. That photograph was made after NOA was taken into custody. It was not a photograph that the police already held.	[^2]: While this part of the charge has been designed for use in cases where there is a risk that a witness’s memory of the offender has been displaced by a memory of a photograph, a modified version may be used where there is a risk that the witness’s memory has been displaced by something else.	114	4 – Evidentiary Directions	4.12.2 Charge - Photographic Identification.docx	298	https://www.judicialcollege.vic.edu.au/media/788/file
4.12.2-c1-s3	4.12.2 Charge: Photographic Identification	## If an Identification Parade Could Reasonably Have Been Held [If the judge finds that an identification parade could reasonably have been held instead of identifying the accused from photographs, add the following shaded section.] In this case, it would have been possible for the police to hold an identification parade instead of having NOW identify NOA from a photograph. In an identification parade, a witness is asked whether they can identify the offender from a selection of people resembling the accused. This process has two main advantages over identification from photographs. First, the witness is identifying an actual person, rather than a two-dimensional representation of that person. S/he is able to see all of the accused’s physical characteristics, such as the way s/he moves and his/her facial expressions. This makes it more likely that the witness will accurately identify the offender. Secondly, as the accused is present at an identification parade, s/he is able to obtain first-hand information about how it is carried out. S/he will be able to see what steps are taken to make sure that it is conducted fairly, rather than having to rely on cross-examination of the people present. In this case, NOA was deprived of these benefits. S/he may also have lost any advantage s/he might have gained if an identification parade was inconclusive. You should take these disadvantages into account when assessing the evidence against NOA. Last updated: 1 July 2013	[^2]: While this part of the charge has been designed for use in cases where there is a risk that a witness’s memory of the offender has been displaced by a memory of a photograph, a modified version may be used where there is a risk that the witness’s memory has been displaced by something else.	114	4 – Evidentiary Directions	4.12.2 Charge - Photographic Identification.docx	298	https://www.judicialcollege.vic.edu.au/media/788/file
4.12.3-c1-s1	4.12.3 Charge: Single Suspect Identification	# 4.12.3 Charge: Single Suspect Identification If the witness was presented with a single suspect to identify, add this section when the identification evidence is given, and again where indicated in the primary charge. In this case, NOA was identified [insert circumstances of identification]. This type of identification is extremely unreliable, due to the fact that the witness is given just one option, instead of being provided with a selection of suspects to choose from. This greatly increases the likelihood that s/he will mistakenly identify the single suspect as the offender, relying on the fact that the police had narrowed down the selection to that one person. It may be dangerous to rely on an identification made in these circumstances, or to give such evidence any significant value. Last updated: 1 July 2013		115	4 – Evidentiary Directions	4.12.3 Charge - Single Suspect Identification.docx	300	https://www.judicialcollege.vic.edu.au/media/789/file
4.12.4-c1-s1	4.12.4 Charge: Court Identification	# 4.12.4 Charge: Court Identification If the accused was identified in the precincts of the court, add this section when the identification evidence is given, and again where indicated in the primary charge. In this case, NOA was identified [insert circumstances of identification]. This type of evidence is extremely unreliable, due to the risk that a witness will leap to the conclusion that the person they are being asked to identify must have been involved in the crime, because otherwise they would not have been at the court. Instead of comparing the person seen at the court with their memory of the person observed committing the crime, there is a danger that the witness may identify the accused on the basis of this false assumption. It may therefore be dangerous to rely on an identification made in these circumstances. Last updated: 1 July 2013		116	4 – Evidentiary Directions	4.12.4 Charge - Court Identification.docx	300	https://www.judicialcollege.vic.edu.au/media/786/file
4.12.5-c1-s1	4.12.5 Charge: Dock Identification	# 4.12.5 Charge: Dock Identification If a dock identification took place, add this section when the identification evidence is given, and again where indicated in the primary charge. In this case, NOA was identified here in court. This type of identification is of no value to the issue of whether or not NOA committed the offence[s] charged. This is because, when asked in court to identify the person who committed the crime, the witness will inevitably point out the person who is on trial. NOA was only identified in this way as a formality, and you should not rely on that identification for any purpose. Last updated: 1 July 2013		117	4 – Evidentiary Directions	4.12.5 Charge - Dock Identification.docx	301	https://www.judicialcollege.vic.edu.au/media/787/file
4.13.1-c1-s1	4.13.1 General Principles of Opinion Evidence	# 4.13.1 General Principles of Opinion Evidence ## What is Opinion Evidence? 1. The "opinion rule" provides that "evidence of an opinion" is generally inadmissible (Evidence Act 2008 s 76).[^2] 2. While the Evidence Act 2008 does not define the term "opinion", it has been held that it refers to an "inference drawn from observed and communicable data" (Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 64 FCR 73) or "evidence of a conclusion, usually judgmental or debatable, reasoned from facts" (R. W. Miller v Krupp Australia Pty Ltd (1992) 34 NSWLR 129. See also Hodgson v Amcor Ltd [2011] VSC 272). 3. Evidence of an "opinion" can be distinguished from evidence of a "fact". Where a witness simply gives evidence of something he or she observed, or of a particular state of past or present affairs, that will not be opinion evidence (see, e.g. Bodney v Bennell (2008) 167 FCR 84; Australian Securities and Investments Commission v Vines [2003] NSWSC 1095; Hodgson v Amcor Ltd [2011] VSC 272). 4. Evidence of an "opinion" can also be distinguished from evidence of "experience". Evidence of a witness’ experiences will not be opinion evidence, unless the witness proceeds to draw some inference from those experiences (see, e.g. Clark v Ryan (1960) 103 CLR 486).[^3] 5. Hearsay evidence of an opinion is itself opinion evidence (R v Whyte [2006] NSWCCA 75; Jackson v Lithgow City Council [2008] NSWCA 312. But cf Australian Securities and Investments Commission v Rich (2005) 216 ALR 320). 6. The following matters have been held not to be opinion evidence for the purposes of the Uniform Evidence Acts:	[^2]: See "Admissibility of Opinion Evidence" below for more information about the opinion rule. [^3]: For example, where a witness with experience of how a particular type of vehicle behaves in certain conditions gives evidence of that experience, it will not be opinion evidence (Clark v Ryan (1960) 103 CLR 486). [^4]: Whether or not this type of evidence will be opinion evidence will depend on the precise nature of the evidence given. It will not be opinion evidence where it is seen to be evidence of fact about professional practices or professional standards. [^5]: See 4.12 Identification Evidence for a discussion of the many risks inherent in the process of identification.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c1-s2	4.13.1 General Principles of Opinion Evidence	- Evidence given by anthropologists of their observations (Bodney v Bennell (2008) 167 FCR 84). - Evidence given by expert witnesses regarding their observations of an attempted reconstruction of an accident (Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21). - Evidence given by witnesses about what they would have done in a hypothetical situation (Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 64 FCR 73; Hughes Aircraft Systems International v Airservices Australia (1997) 80 FCR 276; Seltsam Pty Ltd v McNeill [2006] NSWCA 158). - Evidence given by an expert witness about how a certain type of professional would generally act in particular circumstances (Australian Securities and Investments Commission v Vines [2003] NSWSC 1095).[^4] - Evidence given by a member of an organisation about the information available to that organisation (Bank of Valletta PLC v National Crime Authority (1999) 90 FCR 565). - Evidence describing the workings of a complex piece of equipment, such as a computer (Hodgson v Amcor Ltd [2011] VSC 272). ## Identification Evidence 7. It appears that identification evidence may be either evidence of fact or evidence of opinion, depending on the circumstances: - Where there is little risk of misidentification (e.g. where the witness identifies a person, clearly depicted in a studio photograph, as his or her spouse), identification evidence will normally be regarded as a statement of fact; - Where a real risk of misidentification is present (e.g. where the identification is made from a photograph which does not clearly depict the person who is its subject),[^5] it will usually be appropriate to classify identification evidence as opinion evidence (see, e.g. R v Leung (1999) 47 NSWLR 405; Smith v R (2001) 206 CLR 650 (Kirby J); R v Drollett [2005] NSWCCA 356; R v Marsh [2005] NSWCCA 331).	[^2]: See "Admissibility of Opinion Evidence" below for more information about the opinion rule. [^3]: For example, where a witness with experience of how a particular type of vehicle behaves in certain conditions gives evidence of that experience, it will not be opinion evidence (Clark v Ryan (1960) 103 CLR 486). [^4]: Whether or not this type of evidence will be opinion evidence will depend on the precise nature of the evidence given. It will not be opinion evidence where it is seen to be evidence of fact about professional practices or professional standards. [^5]: See 4.12 Identification Evidence for a discussion of the many risks inherent in the process of identification.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c1-s3	4.13.1 General Principles of Opinion Evidence	8. This means that, in every case involving identification evidence, the trial judge must examine the nature of the evidence proposed to be adduced, and all of the relevant circumstances, to determine whether the evidence is opinion evidence (and is thus subject to the admissibility provisions outlined below) (R v Drollett [2005] NSWCCA 356). ## Evidence in the Form of an Opinion 9. The opinion rule refers to "evidence of an opinion". It has been suggested that this phrase covers both of the following: - Evidence which is substantively an opinion (i.e. an inference drawn from observed and communicable data); and - Evidence of a fact or observation which is given in the form of an opinion (e.g. evidence from a witness that "in his or her opinion" another person was intoxicated) (S Odgers, Uniform Evidence Law (8th ed, 2009) [1.3.4090]).	[^2]: See "Admissibility of Opinion Evidence" below for more information about the opinion rule. [^3]: For example, where a witness with experience of how a particular type of vehicle behaves in certain conditions gives evidence of that experience, it will not be opinion evidence (Clark v Ryan (1960) 103 CLR 486). [^4]: Whether or not this type of evidence will be opinion evidence will depend on the precise nature of the evidence given. It will not be opinion evidence where it is seen to be evidence of fact about professional practices or professional standards. [^5]: See 4.12 Identification Evidence for a discussion of the many risks inherent in the process of identification.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c2-s1	4.13.1 Admissibility of Opinion Evidence	## Admissibility of Opinion Evidence 1. The opinion rule states that evidence of an opinion is not admissible to prove the subject matter of the opinion (Evidence Act 2008 s 76).[^6] 2. There are two main exceptions to the opinion rule: - Opinion evidence from an "expert" witness is admissible if it is wholly or substantially based on specialised knowledge that the witness has obtained from training, study or experience (Evidence Act 2008 s 79).[^7] - Opinion evidence from a "lay" witness is admissible if it is based on what the witness saw, heard or otherwise perceived about a matter or event, and evidence of the opinion is necessary to obtain an adequate account or understanding of the witness’ perception of the matter or event (Evidence Act 2008 s 78). 3. Other exceptions to the opinion rule include: - Summaries of voluminous or complex documents (s 50(3)); - Evidence that is admitted to prove something other than the subject matter of the opinion (s 77);[^8] - Evidence about the existence or content of Aboriginal and Torres Strait Islander traditional laws and customs (s 78A); - Evidence of an admission (s 81); - Evidence of matters which are exceptions to the rule that usually excludes evidence of judgments and convictions (s 92(3)); and - Character evidence (ss 110–111) (see 4.3 Character Evidence). ## Evidence Must Be Relevant 4. Opinion evidence, like any other evidence, is only admissible if it is relevant (Evidence Act 2008 ss 55–56). 5. The relevance of opinion evidence may depend upon an assessment of its factual basis. Opinion evidence will not be relevant if it does not have a rational factual basis (Evidence Act 2008 s 55; R v Panetta (1997) 26 MVR 332). ## Abolition of Common Knowledge and Ultimate Issue Rules 6. Opinion evidence may not be excluded simply on the basis that it is about: - A matter of common knowledge; or - An ultimate issue in the proceeding (Evidence Act 2008 s 80).	[^6]: Section 76 states: "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." [^7]: This includes specialised knowledge of child development and child behaviour, including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse (Evidence Act 2008 s 79(2)). [^8]: For example, where the evidence is admitted to establish the consistency of the witness’ conduct, rather than the truth of his or her assertions.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c2-s2	4.13.1 Admissibility of Opinion Evidence	7. Although the effect of this provision is to abolish the common knowledge and ultimate issue rules, it should be noted that s 80 does not make any evidence admissible. It simply provides that opinion evidence is not inadmissible on the specified bases (Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640). 8. This means that evidence which is about a matter of common knowledge, or which relates to the ultimate issue in a proceeding, should not always be admitted. Such evidence may be inadmissible on another basis (e.g. because it is not wholly or substantially based on specialised knowledge, and thus does not comply with the requirements of s 79), or it may be excluded at the judge’s discretion under ss 135 or 137 (see, e.g. R v GK (2001) 53 NSWLR 317; Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640; Yates Property Corp v Boland (1998) 85 FCR 84). ## Expert Evidence in Homicide Cases Involving Family Violence 9. In homicide cases involving family violence, evidence may be led to show: - The cumulative effect of family violence on a person, including the psychological effect; - The social, cultural or economic factors that may affect a person affected by family violence; - The nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser; - The psychological effect of violence on people who are or who have been in a relationship affected by family violence; and - The social or economic factors that affect people who are or who have been in a relationship affected by family violence (Crimes Act 1958 s 322J).	[^6]: Section 76 states: "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." [^7]: This includes specialised knowledge of child development and child behaviour, including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse (Evidence Act 2008 s 79(2)). [^8]: For example, where the evidence is admitted to establish the consistency of the witness’ conduct, rather than the truth of his or her assertions.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c3-s1	4.13.1 Identification of Factual Basis	## Identification of Factual Basis 1. At common law, when expert opinion evidence is admitted: - The witness must state the factual basis for any conclusions he or she draws; and - The witness should explain how he or she has reached those conclusions (Clark v Ryan (1960) 103 CLR 486; R v Bonython (1984) 38 SASR 45; R v BDX (2009) 24 VR 288).	[^9]: As this evidence is not being admitted to prove the existence of the facts asserted by the representation, it is not captured by the hearsay rule: Evidence Act 2008 s 59(1).	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c3-s2	4.13.1 Identification of Factual Basis	2. This allows the jury to determine whether the opinion has any value in light of their findings of fact, and to assess the weight to be given to that opinion (Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; R v GK (2001) 53 NSWLR 317). 3. While the Evidence Act 2008 does not require witnesses to state the factual basis for their conclusions or to demonstrate their reasoning process, in the other Uniform Evidence Act jurisdictions they have generally been required to do so (see, e.g. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Seven Network Ltd v News Ltd (No 15) [2006] FCA 515). 4. Thus, it may remain prudent to require expert witnesses to identify the facts they have relied upon to form their opinion (see, e.g. Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; R v GK (2001) 53 NSWLR 317; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. See also R v Anderson (2000) 1 VR 1; R v Ryan [2002] VSCA 176; R v Johnson (1994) 75 A Crim R 522). 5. Experts should also be required to explain how their opinion was reached, and the application of their expertise (R v Johnson (1994) 75 A Crim R 522; R v Haidley & Alford (1984) VR 229). 6. Experts may consider matters of common knowledge, as well as their specialised knowledge, when forming their opinion. They should explain that they are relying on this accumulation of knowledge, as well as the way in which they acquired that knowledge (Velevski v R (2002) 187 ALR 233; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313).	[^9]: As this evidence is not being admitted to prove the existence of the facts asserted by the representation, it is not captured by the hearsay rule: Evidence Act 2008 s 59(1).	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c3-s3	4.13.1 Identification of Factual Basis	7. The need to identify and explain the factual basis of an expert opinion will only arise where that basis is contested. If evidence is adduced without objection, the trial judge may ordinarily assume that all matters crucial to the admissibility of the evidence are conceded by the opposing party (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157). 8. While the failure of an expert to explain his or her reasoning process will not necessarily render the evidence inadmissible, it will usually mean that it is less persuasive for the jury (HG v R (1999) 197 CLR 414 (Gaudron J). See also Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527).	[^9]: As this evidence is not being admitted to prove the existence of the facts asserted by the representation, it is not captured by the hearsay rule: Evidence Act 2008 s 59(1).	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c3-s4	4.13.1 Identification of Factual Basis	## Hearsay Evidence Admitted as the Basis of an Opinion 9. Witnesses’ opinions will often be based on out-of-court representations. Evidence of those representations will generally be admissible to explain the assumptions on which an opinion is based (see, e.g. R v Lawson [2000] NSWCCA 214).[^9] 10. If admitted for this purpose, an out-of-court representation may also be used to prove the existence of any facts asserted in that representation (Evidence Act 2008 s 60). 11. It has been suggested that, due to the potential unfairness that may follow from the application of this rule, it may be preferable to avoid admitting evidence of out-of-court representations solely to explain the assumptions on which an opinion is based (R v Lawson [2000] NSWCCA 214 (Sperling J)). 12. If such evidence is admitted, it may be desirable to use the discretion in s 136 to limit the use that may be made of such evidence (Roach v Page (No 11) [2003] NSWSC 907. But see Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559; Bodney v Bennell (2008) 167 FCR 84).	[^9]: As this evidence is not being admitted to prove the existence of the facts asserted by the representation, it is not captured by the hearsay rule: Evidence Act 2008 s 59(1).	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c4-s1	4.13.1 Use of Opinion Evidence	## Use of Opinion Evidence 1. The precise way in which the jury may use opinion evidence will vary depending on the nature of the evidence given and the purpose for which it was admitted (see "Admissibility of Opinion Evidence" above). 2. This topic addresses the uses that may be made of opinion evidence that is admitted under Evidence Act 2008 s 79 (expert opinion evidence), s 78 (lay opinion evidence) and s 77 (evidence admitted for a different purpose). ## Expert Opinion Evidence 3. The jury may use expert opinion evidence:[^10] - To understand other evidence in the case; or - As the basis for drawing an inference (Taylor v R (1978) 22 ALR 599; Farrell v R (1998) 194 CLR 286). 4. Where an expert adopts an industry text or journal as an authoritative source, the jury may use any information contained in the text or journal as facts in the case if: - They accept that the expert has adopted the document; and - They accept the expert’s evidence about that document. (PQ v Australian Red Cross Society & Ors [1992] VR 19). ## Lay Opinion Evidence 5. Lay opinion evidence[^11] may help the jury to understand the matter or event about which the witness gave evidence (see, e.g. R v Leung (1999) 47 NSWLR 405). ## Opinion Evidence Admitted for a Different Purpose	[^10]: Evidence that is wholly or substantially based on specialised knowledge that the witness has obtained from training, study or experience (Evidence Act 2008 s 79). [^11]: Evidence that is based on what the witness saw, heard or otherwise perceived about a matter or event, which is necessary to obtain an adequate account or understanding of the witness’ perception of the matter or event (Evidence Act 2008 s 78). [^12]: For example, opinion evidence may be admitted to establish the consistency of a witness’ conduct, rather than the truth of his or her assertions.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c4-s2	4.13.1 Use of Opinion Evidence	6. If evidence of an opinion is relevant and admissible for a purpose other than proving the existence of the fact which is the subject of the opinion, the exclusionary opinion rule (s 76) does not apply (Evidence Act 2008 s 77).[^12] 7. In such cases, the evidence may also be used to prove the existence of the fact which is the subject of the opinion (Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 64 FCR 73; Hughes Aircraft Systems International v Airservices Australia (1997) 80 FCR 276). 8. In some cases it will be undesirable for the evidence to be used in this way. In such circumstances it may be appropriate to use the discretion in s 136 to limit the use that may be made of such evidence (see, e.g. Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 62 FCR 424; Perpetual Trustee Company Ltd v George; Estate of Conacher (No 2) 28/11/97 NSW SC; Roach v Page (No 11) [2003] NSWSC 907; James v Launceston City Council (2004) 13 Tas R 89; [2004] TASSC 69).	[^10]: Evidence that is wholly or substantially based on specialised knowledge that the witness has obtained from training, study or experience (Evidence Act 2008 s 79). [^11]: Evidence that is based on what the witness saw, heard or otherwise perceived about a matter or event, which is necessary to obtain an adequate account or understanding of the witness’ perception of the matter or event (Evidence Act 2008 s 78). [^12]: For example, opinion evidence may be admitted to establish the consistency of a witness’ conduct, rather than the truth of his or her assertions.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s1	4.13.1 Jury Directions	## Jury Directions 1. The need for a direction on opinion evidence depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of a request (Jury Directions Act 2015 ss 14–16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. The following sections describe the content of directions, if the judge gives directions on opinion evidence. 2. The content of the jury directions will depend on the nature of the evidence given and the ways in which the jury may use that evidence (see "Use of Opinion Evidence" above). 3. No guidance has yet been provided about the directions to be given in relation to lay opinion evidence. The remainder of this topic therefore only addresses directions to be given in relation to expert opinion evidence. ## Directions About Expert Opinion Evidence	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s2	4.13.1 Jury Directions	4. Expert opinion often involves unfamiliar and technical matters. Judicial directions should ensure that the jury can understand the evidence and apply it to the facts of the case (Velevski v R (2002) 187 ALR 233; R v Gemmill (2004) 8 VR 242). 5. The judge’s directions on opinion evidence should explain the significance of the evidence in the context of the case, and give any special directions needed to enable the jury to assess and use the evidence that has been led (Taylor v R (1978) 22 ALR 599). 6. The judge should ensure that the jury understands that, generally, only an expert is permitted to give evidence of his or her opinion. Other witnesses are generally limited to giving evidence of their own observations (Taylor v R (1978) 22 ALR 599; Farrell v R (1998) 194 CLR 286; Ramsay v Watson (1961) 108 CLR 642). 7. Where an expert witness has given evidence about the "ultimate issue",[^13] the judge should make it clear that it is the jury’s role to determine the issue (Australian Law Reform Commission, Evidence (Interim), Report 26 (1985) vol.1 para 743. See also Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640). 8. It is for the jury to decide whether an opinion is credible and what weight it should be given (R v Anderson (2000) 1 VR 1; Velevski v R (2002) 187 ALR 233).	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s3	4.13.1 Jury Directions	9. The judge should tell the jury that they are entitled to reject the evidence if they are not satisfied that the science or the testing is sufficiently accurate, reliable or dependable. The jury is not bound by the opinion of experts, and must not be overawed by the scientific appearance of their opinions (R v Pantoja (1998) 88 A Crim R 554; R v Karger (2002) 83 SASR 135; United States v Baller (1975) 519 Fed 2d 463; R v Gilmore [1977] 2 NSWLR 935; R v Duke (1979) 22 SASR 46; R v Kotzmann [1999] 2 VR 123; R v Parker VicCA 10/8/1995). 10. Where a witness has been cross-examined about the nature and quality of his or her expertise, the jury should be told that a witness’ competency and credit are relevant matters to take into account when determining the weight to be given to his or her evidence (see, e.g. Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49). 11. The jury should be told that expert evidence is only as valuable as the facts supporting the evidence. That evidence only has probative value if the jury accepts the facts that form the basis of the evidence (R v Kotzmann [1999] 2 VR 123). 12. The jury should be directed to examine the basis on which the expert formed his or her opinion, and to determine whether the facts constituting the basis have been proven (Nguyen v R (2007) 173 A Crim R 557). 13. The judge should tell the jury to consider the following matters when they evaluate the evidence of experts:	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s4	4.13.1 Jury Directions	- The witness’ demeanour; - The way the opinion is expressed; - The quality of the reasons for the opinion; - The facts offered by the expert in support of his or her conclusions; - The witness’ response to cross-examination; - Whether the witness appeared to be impartial, or whether s/he was biased and overstated his or her evidence (R v Anderson (2000) 1 VR 1; Taylor v R (1978) 22 ALR 599). ### Unanimous Expert Evidence 14. Where there is unanimous agreement amongst expert witnesses, the jury should be told that they are not bound by the experts’ opinion. However, they may only reject that evidence if: - The facts underlying the opinion are not present; - The process of reasoning leading to the opinion is unsound; or - There is some factor that casts doubt on the validity of the opinion expressed (Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VR 470; R v Matheson [1958] 1 WLR 474; R v Hilder (1997) 97 A Crim R 70; R v Klamo (2008) 18 VR 644). ### Conflicting Expert Evidence	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s5	4.13.1 Jury Directions	15. Where the evidence of expert witnesses conflicts, the jury should be told that they are entitled to prefer the evidence of one expert over another. The role of the jury is to select the evidence that they shall accept, and this includes expert evidence (Velevski v R (2002) 187 ALR 233; Chamberlain v R (No 2) (1983) 153 CLR 521; R v Gemmill (2004) 8 VR 242; R v GK (2001) 53 NSWLR 317; R v NCT (2009) 26 VR 247). 16. It is therefore not appropriate for the judge to direct the jury that one expert is superior to another. This intrudes on the role of the jury (R v Gemmill (2004) 8 VR 242). 17. In exceptional cases, the jury may be incapable of resolving a conflict between experts on matters of science. The judge should tell the jury that they must not accept disputed scientific evidence that is unfavourable to the accused unless there is a good reason to reject the defence evidence (Velevski v R (2002) 187 ALR 233). 18. Prior to the commencement of the Jury Directions Act 2015, courts had held that where the jury’s decision about which expert to accept is likely to determine the accused’s guilt or innocence, the judge should tell the jury that they may only accept the evidence of the expert who is adverse to the accused if they are satisfied beyond reasonable doubt that the witness’ opinion is correct (see R v Anderson (2000) 1 VR 1, 26 [61]; R v Sodo (1975) 61 Cr App R 131. But compare R v Middleton [2000] WASCA 213, [24]–[40]). Such a direction is now prohibited by the Jury Directions Act 2015 s 61. Where there is opinion evidence that is potentially decisive of guilt, judges should discuss with counsel what additional directions or comments are appropriate. One option, where the disputed opinion evidence is the sole evidence on an element, is to refer to the evidence and direct the jury that it must be satisfied that that evidence proves the element beyond reasonable doubt (Jury Directions Act 2015 s 61, Example). ### Expert Evidence About Witness Credibility or Reliability	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s6	4.13.1 Jury Directions	19. Where expert evidence about a witness’ reliability is given, the judge should clearly direct the jury that they must not allow the expert to usurp their function of assessing the credibility of witnesses (Farrell v R (1998) 194 CLR 286). 20. If the evidence of the expert is limited to suggesting that the witness may suffer a disorder that affects his or her reliability, the judge may comment on the limited probative value of that evidence (Farrell v R (1998) 194 CLR 286). ### Expert Evidence About Mental Impairment 21. Expert evidence will usually be necessary to establish a defence under s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 22. In such cases, the judge should relate the expert evidence to the test for mental impairment (Taylor v R (1978) 22 ALR 599; Mizzi v R (1960) 105 CLR 659. See Mental Impairment). 23. While the jury is not bound by the expert evidence, the judge must ensure that they do not ignore unchallenged expert evidence and substitute their common sense view of the evidence (R v Wiese [1969] VR 953; R v Gemmill (2004) 8 VR 242). 24. The judge should warn the jury that, when assessing the expert evidence, they should not assume that the accused would reason in the same way as a person without a mental illness. Common assumptions about sane behaviour may be wrong, and the jury should carefully consider any expert evidence (R v Gemmill (2004) 8 VR 242; Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VR 470; Mizzi v R (1960) 105 CLR 659; R v Weise [1969] VR 953). ### Expert Evidence About Child Sexual Abuse	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s7	4.13.1 Jury Directions	25. A person who has specialised knowledge about child development and child behaviour may give evidence relating to the development and behaviour of children generally, as well as about the development and behaviour of children who have been victims of sexual offences (or offences similar to sexual offences) (Evidence Act 2008 ss 79(2), 108C(2)). 26. This evidence may be relevant to a range of matters in a trial, including testimonial capacity, the credibility of a child witness, the beliefs and perceptions held by a child, and the reasonableness of those beliefs and perceptions (Explanatory Memoranda to the Evidence Act 2008). 27. This evidence may also assist the jury to assess other evidence in the case, or to address misconceived notions about children and their behaviour (Explanatory Memoranda to the Evidence Act 2008). 28. There is no unfettered right to lead expert evidence about child sexual abuse. Where the evidence is undisputed, the parties should consider whether the evidence can be led through agreed facts. If the prosecution resists that approach, it may be necessary to consider the requirement for leave under Evidence Act 2008 s 108C, the potential for leading the evidence in person rather than as agreed facts to result in an undue waste of time under Evidence Act 2008 s 135, or the risk that the probative value of leading in the evidence in that manner will be outweighed by the danger of unfair prejudice under Evidence Act 2008 s 137 (BQ v The King [2024] HCA 29, [59]). 29. Such evidence should usually only relate to the general behaviour and development of children who are victims of sexual offences. The evidence is designed to educate the jury and correct erroneous beliefs by showing that “counter-intuitive” behaviour does not detract from the complainant’s credibility. However, it will rarely be appropriate for the expert witness themselves to give opinion evidence on whether the complainant’s behaviour makes it more likely that the complainant has been the victim of a sexual offence (MA v R (2013) 40 VR 564).	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s8	4.13.1 Jury Directions	30. The High Court has rejected the suggestion that there is any general direction that must be given whenever a party leads child sexual abuse opinion evidence. In particular, it is erroneous to direct the jury, as a general matter, that child sexual abuse opinion evidence says nothing about the credibility or believability of the complainants. In some cases, the very purpose of the evidence will be to assist the jury in their assessment of the complainant’s credibility and reliability (BQ v The King [2024] HCA 29, [47]–[49]). 31. Whether child sexual abuse opinion evidence is relevant to prove a fact in issue directly, or only by affecting the jury’s assessment of the complainant’s credibility, depends on the facts, evidence and issues in the case (BQ v The King [2024] HCA 29, [50]). 32. The need for any particular directions about child sexual abuse opinion evidence depends on the legitimate and illegitimate uses of the evidence and whether there is a need to guard against illegitimate uses. Where the evidence is relevant only to rebut a possible attack on the credibility and reliability of the complainant, then it cannot be used to support tendency reasoning about the accused, or to make the complainant’s allegations more likely because they accord with the common characteristics of child sexual abuse described in the evidence (BQ v The King [2024] HCA 29, [35], [52]–[57]). That is, it may be necessary to direct the jury that while it may use the evidence defensively, to rebut a possible inference arising from counter-intuitive behaviour, it cannot use the evidence positively, to say that the complainant’s allegations are more likely to be true because they are consistent with the range of circumstances in which child sexual abuse occurs.	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1-c5-s9	4.13.1 Jury Directions	Last updated: 26 August 2025	[^13]: As the ultimate issue rule has been abolished (Evidence Act 2008 s 80), such evidence may now be admissible. See "Abolition of Common Knowledge and Ultimate Issue Rules" above.	118	4 – Evidentiary Directions	4.13.1 General Principles of Opinion Evidence.docx	301	https://www.judicialcollege.vic.edu.au/media/919/file
4.13.1.1-c1-s1	4.13.1.1 Charge: Uncontested Expert Evidence	# 4.13.1.1 Charge: Uncontested Expert Evidence This charge may be given where expert witnesses give opinion evidence about a matter on which they unanimously agree.[^2] See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. I must now give you directions about expert evidence. [Insert names of expert witnesses] were asked by the [prosecution/defence] to give evidence about [describe issue] because they are experts in the field. [If appropriate, describe the experts’ fields of expertise, qualifications and experience.] In the course of giving evidence, these witnesses expressed their opinions about [describe issue and summarise experts’ opinions]. Ordinarily, witnesses are not allowed to give their opinions in court. They must confine their evidence to their own observations. This is because it is you who are the judges of facts, and so usually it is only your opinion that is relevant. However, the law says that people with specialised knowledge or training are allowed to give their opinions about matters within their field of expertise, if that may assist you in making your decision. In this case, the evidence of [insert names of expert witnesses] may assist you in determining [explain permissible uses of the expert evidence and any limitations on use]. ## Role of Jury You are not required to accept NOW’s opinion. You are the judges of fact in this case, and even though NOW are experts in their fields, their opinions are merely pieces of evidence like any other, which you may accept or reject. When assessing NOW’s opinion, you should consider factors such as [describe any factors relevant to the assessment of NOW’s evidence, such as his/her qualifications, objectivity, or comparison process. Summarise any evidence and/or arguments addressing these factors]. You will, however, appreciate that the [prosecution/defence] does not challenge NOW’s evidence, nor his/her expertise. [Where relevant add additional directions concerning particular types of expert evidence. See: - 4.13.2.1 Charge: DNA Evidence - 4.13.3.1 Charge: Fingerprint Evidence - 4.13.4.1 Charge: Handwriting Evidence (Expert Witness)] [If appropriate, summarise and explain any relevant prosecution and defence arguments in relation to the witnesses.] Last updated: 29 June 2015	[^2]: Although this charge has been designed for use where multiple witnesses give evidence about which they unanimously agree, it can also be used (with appropriate modifications) in cases where only one expert witness gives uncontested evidence.	119	4 – Evidentiary Directions	4.13.1.1 Charge - Uncontested Expert Evidence.docx	310	https://www.judicialcollege.vic.edu.au/media/922/file
4.13.1.2-c1-s1	4.13.1.2 Charge: Contested Expert Evidence	# 4.13.1.2 Charge: Contested Expert Evidence This charge may be given where expert witnesses give conflicting evidence. See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. I must now give you directions about expert evidence. [Insert names of expert witnesses] were asked by the [prosecution/defence] to give evidence about [describe issue] because they are experts in the field. [If appropriate, describe the experts’ fields of expertise, qualifications* and experience.] In the course of giving evidence, these witnesses expressed their conflicting opinions about [describe issue and summarise experts’ opinions]. Ordinarily, witnesses are not allowed to give their opinions in court. They must confine their evidence to their own observations. This is because it is you who are the judges of facts, and so usually it is only your opinion that is relevant. However, the law says that people with specialised knowledge or training are allowed to give their opinions about matters within their field of expertise, if that may assist you in making your decision. In this case, [insert names of expert witnesses] evidence may assist you in determining [explain permissible uses of the expert evidence and any limitations on use]. It is for you to determine whose opinion, if any, to accept, and how to use that opinion. You are the judges of fact in this case, and even though these witnesses are experts in their field, their opinions are merely a piece of evidence like any other, which you may accept or reject. When assessing evidence given by experts, you should consider factors such as the witnesses’ qualifications, their demeanour, the way they expressed their opinions, and how they responded to cross-examination. You should also consider whether the witnesses appeared objective, or whether they seemed biased and overstated their evidence. You should also examine the quality of the reasons offered for an opinion, and the facts that support that opinion. A witness’s opinion is only valuable if the facts on which it is based are true. [If there is a dispute about the factual bases of the experts’ evidence, explain the dispute to the jury and summarise the relevant arguments.] [If two or more experts disagree over a matter of science, add the following shaded section.*]		120	4 – Evidentiary Directions	4.13.1.2 Charge Contested Expert Evidence.docx	311	https://www.judicialcollege.vic.edu.au/media/920/file
4.13.1.2-c1-s2	4.13.1.2 Charge: Contested Expert Evidence	In this case part of the dispute between the witnesses is about scientific matters. [Summarise* dispute.] If you find that you cannot resolve this conflict by considering the witnesses’ evidence, then you must give the accused the benefit of your doubt, and reject [insert name of prosecution witness] evidence.You can only accept that evidence if you find there to be a good reason to reject [insert name of defence witness] evidence. [If appropriate, summarise and explain any relevant prosecution and defence arguments in relation to the witnesses.*] Last updated: 25 June 2024		120	4 – Evidentiary Directions	4.13.1.2 Charge Contested Expert Evidence.docx	311	https://www.judicialcollege.vic.edu.au/media/920/file
4.13.1.3-c1-s1	4.13.1.3 Charge: Lay Opinion Evidence	# 4.13.1.3 Charge: Lay Opinion Evidence This charge may be given where a lay witness gives opinion evidence. I must now give you directions about opinion evidence. NOW was asked by the [prosecution/defence] to give evidence about [describe matter or event]. In the course of giving evidence, s/he expressed his/her opinion about [describe issue and summarise witness’ opinion]. Ordinarily, witnesses are not allowed to give their opinions in court. They must confine their evidence to their own observations. This is because it is you who are the judges of facts, and so usually it is only your opinion that is relevant. However, the law says that when a person gives evidence about something that s/he witnessed, s/he may give his/her opinion about that thing if it is necessary in order for you to properly understand what it was that s/he witnessed. That is the case here. [Explain how the opinion evidence may assist the jury to understand the witness’ account.] You should keep in mind, however, that [describe opinion] is only NOW’s opinion. You are not required to accept it. You are the judges of fact in this case. NOW’s opinion is merely a piece of evidence like any other, which you may accept or reject. When assessing NOW’s opinion, you should examine the quality of the reasons offered for NOW’s opinion, and the facts that support that opinion. A witness’s opinion is only valuable if the facts on which it is based are true. You should also consider factors such as [describe any factors relevant to the assessment of NOW’s evidence, such as his/her objectivity. Summarise any evidence and/or arguments addressing these factors]. Last updated: 1 December 2009		121	4 – Evidentiary Directions	4.13.1.3 Charge - Lay Opinion Evidence.docx	312	https://www.judicialcollege.vic.edu.au/media/921/file
4.13.2-c1-s1	4.13.2 DNA Evidence	# 4.13.2 DNA Evidence ## What is DNA Evidence? 1. “DNA evidence” refers to a type of expert evidence in which the DNA of a sample found at a crime scene (a “forensic sample”) is compared with a DNA sample provided by the accused (a “reference sample”). 2. As DNA evidence is a type of expert evidence, the principles outlined in General Principles of Expert Evidence apply (subject to any modifications noted below). 3. DNA may be examined and compared using: - “Nuclear DNA testing” which examines and compares the DNA contained in the nucleus of a cell. Nuclear DNA is unique to an individual (apart from identical twins). - “Mitochondrial DNA testing” which examines and compares the DNA contained in the mitochondria. This does not produce a unique result, as mitochondrial DNA is inherited entirely from the mother, and so is the same between siblings (R v Rye [2007] VSCA 247); - “Y-STR testing” which examines and compares the DNA contained on the Y chromosome. This is comparable to mitochondrial testing, as it is inherited entirely from the father, and so is the same between siblings (Tilley v The King [2023] SASCA 80, [81]).		122	4 – Evidentiary Directions	4.13.2 DNA Evidence.docx	313	https://www.judicialcollege.vic.edu.au/media/746/file
4.13.2-c2-s1	4.13.2 What does DNA evidence establish?	## What does DNA evidence establish?	[^2]: The expert uses population statistics to determine the probability of each string length that is measured. Provided each string length is independent, these probabilities are multiplied together to determine the probability of all string lengths being detected in a random sample.	122	4 – Evidentiary Directions	4.13.2 DNA Evidence.docx	313	https://www.judicialcollege.vic.edu.au/media/746/file

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