Various types of identification
Posted on Wednesday, November 14, 2012 by Esther Tan
What comes to our mind when we come across this word "identification"?
Identification does not refer only to fingerprints. It covers other types of identification too such as fingerprints, footprints, voice, identification parade (ID) and etc. Section 9 of Evidence Act 1950 provides relevant and necessary facts to establish the identity of any thing or person whose identity is relevant.
CSI Miami & New York vs CSI Malaysia
It's always interesting to see how CSI Miami & New York can solve their case within an hour whereas criminal cases in Malaysia always left unsolved or probably evidence are not enough to convict the accused. Let's look at different types of identification.
a) Identification by fingerprints
The best case to illustrate identification by fingerprints is PP v Toh Kee Huat. In this case, the position of the accused's fingerprints found from inner surface of the glass on the driver's window. Thus, it was convinced that he is the one who stole the car as the mark could not possibly be there unless he unlawfully tampered with the lock to gain entry to the car. Therefore, the evidence of fingerprints is admissible to prove identity.
b) Identification by voice
The identification of voice can identify the wrongdoer or criminal as illustrated in Teng Kum Seng v PP where the identity of the accused was established by his 3 victims who were able to recognise his voice on the telephone, which was found to be similar, when he telephoned the 3 victims when attempting to put them in fear of injury in furtherance of extorting money from them.
c) Identification by photograph
Court in PP v Kok Heng held that identification of a suspect by photograph before arrest is acceptable but once he is arrested, identification should be by personal inspection.
In Loke Soor Har v PP, a crucial issue on the accused's murder trial was the identification of the murderer.To establish the accused person's identity,a police officer had shown to the identifying witness some photographs of known pickpocket. It was held that this evidence was not admissible as it was prejudicial to the accused as it led to the impression that he was a known pickpocket.
d) Identity parade (IP)
Court in Dato Mokhtar Hashim v PP held that IP is only necessary if the accused persons are not previously known to the witnesses. If known, then IP is not necessary. The purpose of the parade is to test the strength and trustworthiness of the evidence.
In Low Thim Fatt v. PP,3 the appellant with two others were jointly charged in the Sessions Court with three offences of robbery. The appellant was subsequently convicted and sentenced. On appeal, one important ground of appeal was that the identity parade in which the prosecution witness identified him was irregular because before the witness attended the parade she was asked by the police to peep through the glass to see whether the appellant was the one who pointed the gun at her.
Justice Dr. Zakaria Yatim J following Chang Kim Seong v. PP held that the manner in which the identification was conducted was highly irregular. Since the witness had the opportunity to see the appellant beforehand, the evidence of her subsequent identification at the trial was vitiated. In Chang Kim Seong v. PP,4 the appellant appealed against his conviction of murder. The nub of the appellant's appeal was that the appellant was identified by a prosecution witness to the effect that the appellant was the person alleged to be at a certain place and certain time on a certain date. The fact was that this witness had been given an opportunity by the police to see the accused prior to the formal identification, at the identification parade.
Pike CJ held that since the witness had an opportunity to see the appellant beforehand, the evidence of subsequent identification at the parade by the witness was vitiated.(invalidated)
In Chan Sin v PP, court held that ID parades must be held in the usual and proper manner.The suspect must be placed with sufficient number of others of the same nationality and age as himself.
As for the procedure of the IP, court in Ong Lai Kim v PP held that there is no written law regarding the holding of proper ID parade. It is proper to hold ID parade using one-way mirror but must be used with safeguards enumerated in Archbold's Criminal Pleading and Practice.
In PP v Chan Choon Keong, court held that where there is more than two or more suspects, separate identification parade must be held.
In Jaafar b Ali v PP, court held that where the witness had the opportunity to see the accused prior to the ID parade, the evidence obtained from such identification is of no value.
Referring to PP v. Amar Singh, the accused was in jail when police brought a witness to identify him. Such identification was rejected as being improper and unfair.
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d) R v Turnbull Identification guidelines (leading English Court of Appeal case)
Thie guidelines above was mentioned by Hashim Yeop Sani J in Dato Mokhtar Hashim v PP and quoted with approval by Mohamed Azmi SCJ in the Supreme Court in Yau Heng Fang v PP.
There has been cases where accused was acquitted for murder because there was failure to follow Turnbull's identification guideline as such failure will result in substantial miscarriage of justice.
1 Whenever a case against the defendant depends wholly or substantially on the correctness of one or more identifications of the defendant which the defendant alleges to be mistaken, the direction to the jury should include a warning of the special need for caution before convicting the defendant, and the reasons for the caution. But parity of reasoning if there is no jury the Judge must give himself such a warning.
2 The quality of the identification should be considered and the jury should be directed to examine closely the circumstances in which the identification was made.
(a) where the quality of the identification is good, the jury can safely be left to assesses the value of the evidence;
(b) where the quality is poor, the case should be withdrawn from the jury unless there is other evidence capable of supporting the evidence.
(c) the Judge should direct the jury on the evidence that is capable of supporting the identification.
3. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
In PP v. Chan Choon Keon & Ors, Faiza Thamby Chik JC seemed to have accepted the special need for caution in cases where reliance is placed on the identification evidence of witnesses. His view was that in dealing with evidence of visual identification, the Court must remind itself of the special need for caution before convicting the accused in reliance on the correctness of identification. Conflicting pieces of evidence given by two important vital witnesses, i.e., the investigating officer and the officer who conducted the ID parade, were specific weaknesses in the identification evidence. Further the learned JC held the parade to have been improperly conducted.
It appears Counsel had not directed the Judge's mind to the Turnbull guidelines.
In my opinion, Turnbull's guidelines is a good guideline which ought to be followed by our court in identification cases. Otherwise, court may just convict the accused based on mere reliance by the witnesses on the identification made. Turnbull's guideline is aimed in assessing the quality of the identification.
A Amount of time the suspect was under observation by the witness
D Distance between suspect and witness
V Visibility at the time the witness saw the suspect
O Obstructions between suspect and witness
K Knows suspect or has seen him/her before
A Any particular reason for the witness to remember he suspect
T Time lapse since witness saw suspect
E Error or material discrepancy in the description given by witness
It's important to note the above because as mere
human, our memory fail us after quite some time. Unless we are gifted
with photographic memory, more often than not, we forget things that has
happened rather quickly and cannot remember things exactly the way it is
depending on the lapse of time from the time of incident. Thus, court in
R v Turnbull lay down some guidelines to follow in identifying the accused so
that it won't be prejudicial to the accused and at the same time upheld the
principle of justice.
This guideline is to eliminate or minimize the risk
of error in identification of the accused. At the same time, this guideline
ensures that police, while bringing witness to identify the suspect, will not
do as he like but follow rules and regulations as illustrated in the
cases above. Otherwise, court will have to quashed the accused's
conviction just because the procedure in identification was not followed,
was highly irregular and thus caused prejudice to the accused. If all the accused
can get away based on this ground, then our justice system is indeed
questionable. Thus, this Turnbull guideline should be made compulsary for all
to follow when there is identification made.
In UK, there is Police and Criminal Evidence Act 1984 (PACE) and accompanying codes of practice. For example, supporting code G (Arrest) concerning 'voluntary' interviews by police and explaining the arrangements for obtaining free legal advice if a police interview takes place. We should also implement this in Malaysia in support to Police Act and also Criminal Procedure Code. With this, we can implement the Turnbull guidelines into PACE as well.
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