Introduction and background
8.1 During the 20th century, it became widely acknowledged that there were a number of issues with identification evidence. In a Miscellaneous Paper on eyewitness identification the Law Commission issued in 1999, it was noted that a study of post-1900 wrongful convictions in the United States had shown eyewitness misidentification to be a factor in 52 per cent of the cases. In terms of particular issues, research showed that many jurors appear to believe eyewitnesses too readily, have problems distinguishing between accurate and inaccurate eyewitnesses, and that assumptions people make about reliability (such as an ability to recall peripheral details) are not necessarily correct.
8.2To deal with some problems that had been identified, ss 344B to 344D were inserted into the Crimes Act 1961 by the Crimes Amendment Act 1982. The most important, for our purposes, was s 344D, which set out the warning a judge was to give to a jury where the principal evidence in a case related to identification. The Law Commission’s proposed Evidence Code envisaged substantially re-enacting s 344D of the Crimes Act 1961, and going further by formalising the process for determining when identification evidence would be admissible in court.