VISUAL IDENTIFICATION
Posted on Sunday, December 16, 2012 by shila
Visual identification is one of the method to identify a person, an accused specifically. However, how reliable are the visual identification? It has become a controversy and unreliable as it was claimed that there were many factors that influence in the process of the identification.
Identification based
on the evidence of a witness, even one who claims to be ‘certain’ that they saw
the accused commit the offence, can ultimately result in the conviction of an
innocent person. The reasons for identification evidence being considered
unreliable are provided in a number of leading cases. For example,
McHugh and Gummow JJ give the following reasons in Bulejcik v R:
"Identification
evidence is often unreliable evidence because human perception and recollection
are prone to error. … The capacities of individuals to remember sights and
sounds vary enormously. Some persons may remember sounds that others do not,
just as some persons may recollect physical features when others who were
present cannot recollect them. Moreover, individuals who witness or are
involved in criminal incidents react differently. Some remain relatively calm;
others are shocked or confused."
It also has to be noted that there is a distinction between recognition and identification. Recognition on the other hand is more reliable than mere identification. The vast difference among the two is the former involves a person that had been known while the latter is a stranger. per Hashim Yeop Sani J in Dato' Mokhtar bin Hashim v Public Prosecutor:
"It is important in my opinion to draw a distinction between recognition and identification. Recognition is more reliable than mere identification. Recognition of a person known to the witness would be more reliable than identification by a witness of a stranger. "
The judge then relied to Lord Chief Justice in the judgement of the Court of Appeal in Raymond Turnbull & Ors regarding some pertinent questions as follows:
"...the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long had elapsed between the original observation and the subsequent identification to the police?"
Thus, an identification in court for the first time (dock identification) is of little significance. An evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime will generally be of little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not by reason of previous knowledge or association, become familiar with the appearance of the accused.
per Chong Siew Fai CJ in Arumugam s/o Muthusamy v Public Prosecutor:
"Generally speaking, however, a dock identification in the sense as described above, ie identification of an accused for the first time in court at the trial is undesirable, and it would be a good practice to hold an identification parade, which, if it turns out positive, would strengthen the case for prosecution."
Case law establishes that dock identification is unsafe and meaningless in the circumstances as follows:
(1) where the witness fails to identify the accused at an identification parade held just after the crime.
(2) where the dock identification occurs several years after the crime was first committed.
(3) where the witness identifies the accused in the dock merely because he is handcuffed.
(4) where the accused is a total stranger to the witness.
It is well understood that where the complainant had recognized the accused then it would constitute good evidence of identification. So, the thing will be different when the complainant had seen the accused several times before because it does not amount to mere identification more, but lead to a recognition. As the facts of each case differs with one another, so, the principle used need to be applied fit with the case.
per Gill J in Public Prosecutor v Basar:
"The learned magistrate acquitted the respondent at the end of the case for the prosecution, his ground for such acquittal being that PW1's evidence could not be relied on in so far as identification alone was concerned. He stated in his grounds of judgment that a court should scrutinize very carefully any evidence relating to the identification of an accused person. I had no reason to quarrel with his general statement on that point but what he, in my opinion, failed to appreciate was that there was positive evidence about the identity of the respondent by PW1 who admittedly had known him for some time and had seen his face by the flashes of lightening."
- Riot
As in a rioting case, it is sufficient if only some of the required number of persons have been identified. per Terrel Ag CJ in Latip bin Ahmad & Ors v R:
"As regards all three accused, it was submitted that, as of the five persons originally charged two had been acquitted, the remaining three did not constitute an 'unlawful assembly' within the meaning of section 146 of the Penal Code, and could not accordingly be convicted of rioting.. This would be a valid argument if the three appellants were the only people who took part in the disturbance. There was, however, ample evidence that the complainants were attacked by a number of people far in excess of five, and the fact that only three have been sufficiently identified does not prevent these three from being convicted of an offence under section 147."
Identification evidence thus need some improvement as the reliability of the identification give rise to the justice to the parties in the proceeding. The right between parties need to be balanced but at the same time the real culprit must not escaped. It would be worst if the culprit in criminal trial was escaped because of the lack in our law itself. Then, the law as an instrument to uphold justice will be not of significance anymore.
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