116. Directions to jury

116. Directions to jury

(1) If identification evidence has been admitted, the judge is to inform the jury-

(a) that there is a special need for caution before accepting identification evidence; and

(b) of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) It is not necessary that a particular form of words be used in so informing the jury.

Note also the reference to identification evidence at s 165(1)(b) in relation to jury directions about unreliable evidence.

Warnings to the trier of fact regarding identification evidence are required. Specific directions about the potential weaknesses of the evidence are necessary (as with the existing common law position, outlined in Domican v R (1992) 173 CLR 555). These warnings are necessary regardless of whether the evidence led is evidence of identification or similarity.

Section 116 does not require that a warning has to be given even when the evidence is not in dispute: Dhanhoa v R (2003) 217 CLR 1. To give a warning when the evidence is neutral or even favours the defence case has the potential to confuse the jury and make a case more complicated than it needs to be.

The Victorian Court of Appeal first considered the operation of these identification provisions in THD v The Queen [2010] VSCA 115. This decision was from an interlocutory appeal and did not comprehensively set out the law of identification in Victoria. To what extent the law is now codified, and to what extent the statutory provisions are complemented by existing precedent, has yet to be determined.