Not all the warnings necessary as a safeguard against misuse of identification evidence may be required by statute. The common law may supplement what statute requires.
Evidence Acts can be rather vague on what sort of warnings to juries must be given concerning eyewitness identification. In New Zealand, s 126 of the Evidence Act 2006, and in Australia (in jurisdictions where it is applies or is adopted), s 116 of the Evidence Act 1995 (C’th), both provisions are in general terms. Often the matter is entirely one for the common law, as in may be in Canada and is in the United Kingdom.
In Pipersburgh v R (Belize) [2008] UKPC 11 (21 February 2008) there had been no identification parade and the first visual identification of the accused persons as the offenders was made in the courtroom. The Privy Council held that its decision in Holland v HM Advocate [2005] UKPC D1 at para 47 applied. This is as follows:
"In the hearing before the Board the Advocate-depute, Mr Armstrong QC, who dealt with this aspect of the appeal, accepted that identification parades offer safeguards which are not available when the witness is asked to identify the accused in the dock at his trial. An identification parade is usually held much nearer the time of the offence when the witness's recollection is fresher. Moreover, placing the accused among a number of stand-ins of generally similar appearance provides a check on the accuracy of the witness's identification by reducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, the Advocate-depute did not gainsay the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused's position in the dock positively increases the risk of a wrong identification."
Accordingly, two issues needed to be addressed by the judge in directing the jury: the general dangers concerning eyewitness identification, and the particular dangers concerning dock identification. The Board summarised the inadequacies of the judge’s directions, para 17 of Pipersburgh:
“In the present case, it may well be that the judge bemoaned the fact that no identification parade had been held and pointed out the advantages of such a parade. But, despite what the Board had said in Pop v The Queen (Belize)[2003] UKPC 40, he did not point out that Mr Robateau [one of the appellants] had thereby lost the potential advantage of an inconclusive parade. Moreover, while giving directions on the care that needs to be taken with identification evidence in general, the judge did not warn the jury of the distinct and positive dangers of a dock identification without a previous identification parade. In particular, he did not draw their attention to the risk that the witnesses might have been influenced to make their identifications by seeing the appellants in the dock. And, perhaps most importantly, even if the judge's directions would have ensured that the jury appreciated that this type of identification evidence was undesirable in principle, he did not explain that they would require to approach that evidence with great care. On the contrary, the closing words of the direction really left the whole matter to the jury on the basis that the witnesses said that they knew the men and it was simply up to the jury to accept or reject their evidence.”
The circumstances in this case demonstrate that even where, in the opinion of a court of first appeal, the witnesses observed the offenders in good conditions of lighting, distance and time, and where they claimed to be recognising people they had seen several times before, it is still necessary for the judge to give a detailed warning about the risk of error.
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