Identification evidence is a commonly relied upon form of evidence. Our criminal lawyers are experts in challenging identification evidence in the Local Court, District Court and Supreme Court.
Identification evidence is evidence that suggests you were or resemble the person who committed the offence.
Under the Evidence Act 1995 (NSW), it includes:
- A witness claiming you were present at the scene,
- A witness claiming you resemble the offender,
- Any report of such an assertion.
The evidence might be:
- Visual (what a witness saw)
- Aural (what a witness heard, such as voice recognition)
- Picture identification (selection from police photographs).
While often persuasive, this type of evidence is notoriously unreliable. Courts recognise that even confident and honest witnesses can be mistaken.
How do we defend identification cases?
Our criminal defence lawyers take a strategic approach by:
- Challenging admissibility under the Evidence Act,
- Identifying failures in police procedures,
- Highlighting weaknesses in witness observations,
- Exposing inconsistencies in descriptions,
- Arguing that the evidence cannot meet the standard of proof.
The legal test for identification evidence
The admissibility of visual identification is governed by s 114 of the Evidence Act 1995 (NSW). Visual identification is defined as evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
Visual identification evidence is generally not admissible unless:
- An identification parade (line-up) was held, or
- It was not reasonable to hold one, or
- The accused refused to participate.
Identification parade
An identification parade involves police placing a suspect among a group of similar-looking individuals and asking a witness to view the line-up to determine whether they can identify the offender.
Failure to follow proper procedures can result in the exclusion of evidence.
Even if a parade is held, the evidence will still be inadmissible if the identification was influenced by police or others. This includes:
- Suggestive comments,
- Showing the accused in isolation,
- Improper photo identification practices.
Picture identification
Picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification, examining pictures kept for the use of police officers.
Identification from photographs is treated with even greater caution. It will be inadmissible where:
- The photos suggest the accused is in police custody,
- A line-up could have been held, but wasn’t,
- The process is unfair or prejudicial.
Special caution
Even when identification evidence is admitted, judges must warn juries to treat it with caution.
Courts emphasise:
- A witness can be honest but mistaken,
- Identification evidence can appear convincing but be wrong,
- History shows many wrongful convictions based on misidentification.
Jurors are specifically directed to consider:
- Lighting and visibility,
- Duration of observation,
- Stress levels,
- Whether the accused was a stranger,
- Time between the event and identification,
- Differences between description and actual appearance.
Reasonable doubt
Once the identification evidence is challenged, the prosecution must still prove beyond a reasonable doubt that you were the offender. Under section 116, the Evidence Act 1995 (NSW), judges warn juries:
- To exercise special caution,
- That mistaken identity is common.
What happens if you are charged based on identification?
If you have been identified by a witness, it does not mean the case against you is strong. These cases are often highly defensive, particularly where:
- No proper identification parade was conducted
- The identification conditions were poor.
- There is a risk of mistake.
Contact us
Australian Criminal Law Group offers free first appointments, in person at Sydney CBD, Parramatta, and Blacktown, as well as via phone and video.
To book your free first conference with the Australian Criminal Law Group, call (02) 8815 8167 or submit a website enquiry.
Contact us now.