Chapter 8
Identification evidence

Observation evidence and directions under section 126

8.23Section 126 sets out when a judge must direct a jury on visual or voice identification. Unlike s 45, it is not triggered by “visual identification evidence” as defined in s 4:

126 Judicial warnings about identification evidence

(1) In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
(2) The warning need not be in any particular words but must—
(a) warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
(b) alert the jury to the possibility that a mistaken witness may be convincing; and
(c) where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.

8.24Three categories of general visual identification evidence emerge from the case law:

  • Resemblance evidence – where a witness gives evidence that a person shares certain features or attributes in common with the defendant (ie “the person I saw doing X looked like the defendant”).
  • Recognition evidence – where a witness gives evidence that the offender is someone with whose appearance they are already acquainted (ie “the person I saw doing X was the defendant”).
  • Observation evidence – where a witness gives evidence about what a person does at the scene (ie “the person I saw was doing X”).
8.25 The first two categories (resemblance evidence and recognition evidence) have caused little concern. Resemblance evidence does not come within the s 4 definition of “visual identification evidence”,562  so s 45 is not engaged, and no s 126 warning is required (although it may be appropriate for the judge to give the jury some directions).563  On the other hand, recognition evidence does meet the s 4 definition,564  so s 45 is engaged, and a s 126 warning is required.565
8.26 However, observation evidence has caused problems as to whether it comes within the s 4 definition, and so engages s 45, and / or whether a s 126 warning is required. In particular, there was arguably a divergence in the view of the Court of Appeal in the case of R v Uasi,566  on the one hand, and the cases of R v Edmonds567  and R v Turaki,568  on the other.
8.27In R v Uasi, the issue at trial was whether the defendant was, as alleged by the Crown, the person who had beaten the complainant around the head with a metal pole. Mr Uasi accepted that he had been at the party at which the complainant was injured, but his defence was that, when a fracas broke out, he had only been involved in kicking another man (ie not the complainant). One witness, Ms Cotterell, gave evidence that she had seen Mr Uasi kicking and striking the person on the ground with the pole. The Court of Appeal had “no difficulty” in concluding that her evidence did contain visual identification of Mr Uasi,569  and that a s 126 identification warning was required.570
8.28Then there were the decisions in R v Edmonds571  and R v Turaki,572  which were both delivered by the same composition of the Court of Appeal on 20 June 2009. The former dealt primarily with s 45. In that case, the Court was considering whether s 45(4)(d) applied, which depended on whether the officer involved in the case could reasonably anticipate that identification would be in issue. The Court stated:573

There is a difference between observation and identification evidence. Identification evidence involves identifying an individual as being present at the scene of the offence – see the definition of visual identification evidence in s 4. By contrast, observation evidence concerns the actions of a person, including an offender’s alleged participation in the offence. It is different from identification evidence, and there may be instances where it stands alone because the presence of the offender at the scene is not in dispute.

8.29This reasoning seems to have influenced the Court’s decision in R v Turaki, which dealt primarily with s 126 warnings.574  That case was similar to R v Uasi, in that Mr Turaki accepted that he was at the party at which the complainant was assaulted, but his position was that he took no part in the attack.
8.30The Court stated:575

Given that it is clear that Mr Turaki was in the group of three males outside Ms Graham’s apartment, the only real issue is whether the jury ought to have entertained a reasonable doubt about Mrs Ulukita’s evidence that the person (by implication the male with the Afro she had earlier described) who kicked Mr Fonoti while he was on the ground was the chubby one with the umbrella, as described at [14]. This was not identification evidence. It was a question of observation. The chubby man with the Afro and the umbrella (ie Mr Turaki) had already been “identified” as one of the three males outside the apartment, by way of Mrs Ulukita’s, Ms Graham’s and Ms Taie’s descriptions being matched against Mrs Packer’s evidence of speaking to Mr Turaki just before. Further, Mr Turaki accepts that he was outside the party at the time of the assault.

8.31Given it was not identification evidence, the Court held that s 126 did not apply,576  and so the trial Judge did not err in law in not giving a full identification warning.
8.32 This brings us to R v Peato, another s 126 case.577  Again, Mr Peato accepted his presence at the scene of the attack on the complainant, and that he had punched the complainant, but he denied kicking him or using a bottle on him. Therefore, the evidence of the witnesses as to what Mr Peato did at the scene was what the Court in R v Turaki would call “observation evidence”. However, the Court here did not consider that this meant that the evidence could not also be visual identification evidence. The Court stated:578

The definition of visual identification evidence in s 4 and the linkage between ss 45 and 126 are not straightforward. To draw a bright line distinction between visual identification evidence in the strict sense and observation evidence, and to require a s 126 warning for the former but not the latter, is not necessarily consistent with the evident statutory purpose of avoiding miscarriages of justice through mistaken identifications. In particular, we do not see any necessary logical distinction in all cases between evidence identifying the accused as being present at or near the scene of an offence and evidence identifying which of several possible attackers was responsible for inflicting the fatal blow or, in this case, wielding the bottle which injured the victim.

8.33 An alternative (and, in their view, possibly less attractive) argument the Court posited to support their view was that:579

… It is possible to interpret ss 45 and 126 as distinct in purpose and scope. Section 45 is concerned with the admissibility of visual identification as defined in s 4. This is linked with the need for a “formal procedure” as a means of obtaining visual identification evidence. …

There is nothing in s 45 directly linking the admissibility issues to the judicial warnings required by s 126, a provision contained in a quite separate Subpart 6 under Part 3 of the Act dealing with trial process. While there can be no question that s 45 is dealing with visual identification evidence as defined by s 4, the identical expression is not used in s 126. Section 126 is not confined to identifications of the defendant. Unlike s 4, it extends also to the identification of any other person.

We consider that s 126 may be interpreted as referring to all evidence relating to the identification of a person, regardless of whether that evidence is “visual identification evidence” within s 4. In particular, s 126 may include observation evidence, being evidence identifying the defendant as the person who committed the offence by doing a particular act. To restrict the need for a warning strictly to “visual identification evidence” as interpreted in Turaki would undermine the purpose of s 126 which is to ensure that juries are aware of the well recognised reliability problems with eye-witness evidence as to identification.

8.34Matters seem to have been resolved somewhat in relation to s 126 in E (CA113/2009) v R (No 2), the Court of Appeal stating that they do not consider R v Turaki and Peato v R to be “in fact as inconsistent as they might appear at first blush”.580  They went on to note that:581

… the Court did not mean to suggest in Turaki that identification could never be at issue when an accused accepts that he or she was present at or near the scene of the offending. The question to be asked is, as the Crown submitted, whether identification was in issue, or whether it was merely the accused’s actions.

8.35The Court of Appeal also accepted the Crown submission that the wording of s 126 is “awkward”,582  as it:583

… mandates a judicial direction in accordance with the provision’s terms whenever “the case against the defendant depends wholly or substantially on the correctness of one or more visual identifications of the defendant or any other person”. In a sense, most criminal prosecutions ultimately rest upon such a proposition. However, it seems unlikely that Parliament intended judges to give this direction in every case and so the phrase “depends wholly or substantially” is presumably directed at those cases in which identification is either in issue or is such as to give rise for the need for the direction in light of the dangers commonly attributed to this category of evidence.

8.36The final case it is necessary to refer to is Witehira v R.584  After referring to R v Turaki, Peato v R and E (CA113/2009) v R (No 2), the Court of Appeal stated that they took the approach that “even where the defendant admits his or her presence at the scene of the crime, a s 126 warning may be required.”585  In their view, “where ... there is an issue about participation in the offending, presence at the precise spot where the offence occurred becomes intertwined with involvement in the act constituting the offence.”586

8.37The position at present in respect of “observation evidence” is, therefore, as follows:

  • A s 126 warning will be required for observation evidence if identification is still in issue.
  • Observation evidence does not come within the s 4 definition.587
8.38We are satisfied with the final position that has been reached with respect to “observation evidence” and s 126 warnings. In respect of “observation evidence” and s 4 (and so s 45), we note that some doubt was cast on the above interpretation by R v Peato.588  However, we are not aware of any problems in practice with it, and we suspect that the same question is being asked as regards s 126 – is identification in issue, or was it merely the defendant’s actions?

8.39Accordingly, we consider that no legislative change is required in either regard.

8.40However, we note that s 4 of the Evidence Amendment Act 2011 inserts a new s 46A into the Act which reminds a judge of the need for caution where a defendant disputes identity evidence against him or her. This is due to the repeal of the equivalent provision in the Summary Proceedings Act 1957 as part of the criminal procedure reforms effected by the Criminal Procedure Act 2011. It is a companion section to s 126. It is more appropriately located either in, or alongside, s 126.589

R17 We recommend that the substance of the new s 46A that the Evidence Amendment Act 2011 inserts into the Act be re-located in, or alongside, s 126.

562R v Turaki [2009] NZCA 310 at [58].
563At [94].
564R v Uasi [2009] NZCA 236, [2010] 1 NZLR 733 at [21]; R v Turaki, above n 562, at [62]; R v Edmonds, above n 552, at [38]; and Harney v Police, above n 554, at [16].
565R v Uasi, above n 564, at [21] and [25]; and R v Turaki, above n 562, at [62].
566R v Uasi, above n 564.
567R v Edmonds, above n 552.
568R v Turaki, above n 562.
569R v Uasi, above n 564, at [21].
570At [25].
571R v Edmonds, above n 552.
572R v Turaki, above n 562.
573R v Edmonds, above n 552, at [42].
574R v Turaki, above n 562.
575At [36] (emphasis added).
576At [58].
577R v Peato [2009] NZCA 333, [2010] 1 NZLR 788.
578At [22].
579At [41]–[43].
580E (CA113/2009) v R (No 2) [2010] NZCA 280 at [63].
581At [65] (emphasis added).
582At [63].
583At [60].
584Witehira v R [2011] NZCA 658.
585At [45].
586At [47].
587R v Edmonds, above n 552, at [42].
588R v Peato, above n 577, at [22]. Given this case was primarily dealing with s 126, the Court’s comments on s 4 (and s 45) were strictly obiter, suggesting that, if necessary, the position in R v Edmonds, above n 552, would have to be followed by the lower courts. This seems to be reflected in Harney v R [2010] NZCA 264 at [26], a point which the Supreme Court did not comment on in Harney v Police, above n 554.
589See discussion in Elisabeth McDonald Principles of Evidence in Criminal Cases (Brookers, Wellington, 2012) at 316 and footnote 228.