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4.13 - Identification Evidence

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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 s36).
  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.

    What is Identification Evidence?

  5. For the purposes of jury directions, "identification evidence" is defined in Jury Directions Act 2015 s35. 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:

    When to Warn the Jury about Identification Evidence

  6. 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 ss12, 16).
  7. For more information on the request for direction process or on the residual obligation, see Directions Under Jury Directions Act 2015.
  8. 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 s36).

    Content of the Charge

  9. A direction on identification evidence will be sufficient where it:
  10. 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).
  11. 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]).
  12. Additional directions, which are unrelated to the potential unreliability of identification evidence, may also be required where:
  13. 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.
  14. 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. Options include:

    "Identification Evidence" Under the Jury Directions Act 2015

  15. 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.

  16. 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 s35; see also R v Bath [1990] Crim LR 716 (CA); R v Kotzmann [1999] 2 VR 123).
  17. 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:
  18. 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.
  19. 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.

    Method of identification

  20. 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).
  21. 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:

    Types of Identification Evidence

  22. 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

  23. 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).
  24. An example of positive identification evidence is picture identification evidence, as defined under s115 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 at [41]).

    Recognition Evidence

  25. 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

  26. 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

  27. There are three ways in which comparisons may be made. These are comparisons:
  28. Only the first type of comparison listed above may be considered "comparison 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.[4]
  29. 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

  30. The term "negative identification evidence" is generally used to refer to exculpatory evidence in which:
  31. 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).
  32. 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).
  33. 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.
  34. The fact that negative identification evidence favours the accused does not itself provide a "good reason" for not giving a s36 warning (Kanaan v R [2006] NSWCCA 109).

    When to Give an Identification Evidence Warning

  35. 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.
  36. 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 ss15, 16).
  37. See 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 s36 Required?

  38. 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 s12 (Jury Directions Act 2015 s36(1)).
  39. Counsel making such a request must specify the significant matters which may make the evidence unreliable (Jury Directions Act 2015 s36(2)).
  40. 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 s15).
  41. 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 s16).
  42. When giving a direction in respect of identification evidence, the trial judge must:

    What is a "Significant" Matter?

  43. 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:
  44. 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 ss15, 16).

    Substantial and Compelling Reasons for a Warning

  45. 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 s16).
  46. It is suggested that there will be "substantial and compelling" reasons for giving a direction in the following circumstances:

    Factors affecting whether a direction is required

  47. 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

  48. At common law, a warning about positive identification evidence may be necessary where:
  49. 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).
  50. 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).
  51. The warning may be necessary in relation to direct and circumstantial positive identification evidence (Festa v R (2001) 208 CLR 593).
  52. 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).
  53. 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).
  54. 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).
  55. 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).
  56. 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).

    Recognition Evidence

  57. 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).
  58. 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).
  59. 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;
    2. the circumstances in which the accused was previously seen by the witness or known to the witness; and
    3. 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).
  60. 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).

    Similarity Evidence

  61. 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 per 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 per Deane J; Festa v R (2001) 208 CLR 593 per Hayne and Kirby JJ).
  62. 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 per Hayne J; R v Theos (1996) 90 A Crim R 486 (Vic CA)).
  63. 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).
  64. 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 per McHugh J).
  65. 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).

    Comparison Evidence

  66. 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;
    2. 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
    3. by witnesses comparing items about which they have particular expertise.
  67. 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 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

  68. 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).
  69. 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).
  70. 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).
  71. 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).
  72. 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) 90 A Crim R 486 (Vic CA)).
  73. 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

  74. 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).
  75. 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) 90 A Crim R 486 (Vic CA)).

    Directions in Respect of Picture Identification Evidence

  76. The directions specified under Jury Directions Act 2015 s36 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 s37).
  77. Under Evidence Act 2008 s115(7), if picture identification evidence adduced by the prosecutor is admitted into evidence, the trial judge must, on the request of the accused:

    No Set Formula for Charge

  78. While an identification warning must contain the mandatory matters set out in s36, the trial judge is not required to adopt any particular form of words when giving the warning (Jury Directions Act 2015 s6).
  79. 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).
  80. 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).
  81. 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 s36; R v Burchielli [1981] VR 611).
  82. 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).
  83. 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).
  84. 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

  85. 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).
  86. 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 s36(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 at [54], [67] and compare Burchielli v R [1981] VR 611 and R v Mendoza [2007] VSCA 120).

    Need for Caution

  87. 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 s36(3)(a)).
  88. 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 ss116, 165; R v Clarke (1997) 97 A Crim R 414).
  89. 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

  90. 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 s36(3)(d); R v Turnbull [1977] QB 224; R v Burchielli [1981] VR 611).
  91. 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 per 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 per Brooking J; R v Callaghan (2001) 4 VR 79).
  92. 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).

    Potential Causes of Unreliability

  93. In giving an identification evidence warning pursuant to Jury Directions Act 2015 s36, the judge will need to inform the jury about the general causes of unreliability which are significant (Jury Directions Act 2015 s36).
  94. 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).
  95. 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).
  96. The matters that may cause identification evidence to be unreliable generally differ depending on the:
  97. 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).
  98. The general dangers associated with particular types of identification evidence are examined below.

    General Dangers of Positive Identification Evidence

  99. Positive identification evidence is seen to be "notoriously uncertain" due to the number of variables upon which it depends. These include:
  100. 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).
  101. 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).
  102. 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).
  103. 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

  104. 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).
  105. 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).
  106. 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).
  107. 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).
  108. 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).
  109. 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).
  110. 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).
  111. 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).

    General Dangers of Similarity Evidence

  112. 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).
  113. 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 per Hayne J).
  114. 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 per McHugh J).
  115. 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 per Gleeson CJ; R v Morgan [2009] VSCA 225).
  116. 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 per Deane J).
  117. 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).
  118. 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 per McHugh J; R v Camilleri (2001) 127 A Crim R 290; R v Morgan [2009] VSCA 225).
  119. 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:
  120. 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) 90 A Crim R 486 (Vic CA)).
  121. 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

  122. 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).
  123. Very careful and strong directions will often be called for in the case of voice comparisons (Bulejcik v R (1996) 185 CLR 375 per Toohey and Gaudron JJ).[9]
  124. 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 per Toohey and Gaudron JJ; Nguyen v R (2002) 26 WAR 59; R v Madigan [2005] NSWCCA 170).
  125. 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).
  126. 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).
  127. 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 per Toohey and Gaudron JJ).

    General Dangers of Photographic Identification Evidence

  128. Identification from a photograph may be unreliable due to the differences between photographic representations and nature:
  129. 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).
  130. 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).
  131. 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

  132. 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).
  133. 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 per Kirby J).
  134. 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]
  135. 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

  136. 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).
  137. Some factors that may be relevant in relation to the voice identification process include:
  138. 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).
  139. 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).
  140. 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

  141. 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).
  142. Some matters which may affect the reliability of negative identification evidence include:
  143. 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 s36; R v Rose (2002) 55 NSWLR 701).
  144. 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:
  145. 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).
  146. 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).
  147. The precise content of the direction will depend on the type of negative identification evidence adduced. For example:
  148. 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

  149. 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:
  150. 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).
  151. 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).
  152. 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:

    Specific Causes of Unreliability

  153. 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 s36).
  154. 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).
  155. 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 s36(3)(b). See also Domican v R (1992) 173 CLR 555; R v Dupas (2009) 28 VR 380).
  156. 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).
  157. The judge may point out significant matters supporting an identification, as long as the weaknesses are also highlighted (Jury Directions Act 2015 s36(3)(b); R v Fox (No 2) [2000] 1 Qd R 640. See also R v Davies (2005) 11 VR 314).
  158. Even if a matter of significance would be obvious to the jury, it should be identified (Ilioski v R [2006] NSWCCA 164).
  159. 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]
  160. 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 s36(3)(b); R v Bint & Butterworth 19/7/1996 CA SA).
  161. 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).

    Specific Factors Affecting the Reliability of Identification Evidence

  162. Factors affecting the reliability of identification evidence in a particular case include:
  163. Factors that may be relevant to the initial observation include:
  164. Factors that may be relevant to the nature of the relationship between the witness and the person observed include:
  165. Factors that may be relevant to the identification process include:
  166. Other factors that may be relevant to the issue include:
  167. 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 ss15, 36; see also R v Dodd (2002) 135 A Crim R 32).

    The Displacement Effect

  168. 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).
  169. 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]
  170. Thus, the "displacement effect" may be relevant where:
  171. 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 s36(3); see e.g. R v Burchielli [1981] VR 611).

    Picture Identification

  172. 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.
  173. These directions must be given if:
  174. The content of the direction depends on whether the relevant picture was made before or after the accused was taken into custody:
  175. 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).
  176. 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

  177. 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:

    Refusal to Participate in an Identification Parade

  178. 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).
  179. 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.
  180. 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).

    Notes

[1] 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).

[2] 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).

[3] 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).

[4] See Charge: Comparison by Jury.

[5] See General Principles of Opinion 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.

Last updated: 22 August 2018

In This Section

4.13.1 - Charge: Identification Evidence

4.13.2 - Charge: Photographic Identification

4.13.3 - Charge: Single Suspect Identification

4.13.4 - Charge: Court Identification

4.13.5 - Charge: Dock Identification

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings