An Examination of Criminal Jury Directio

8/18/2019 An Examination of Criminal Jury Directio

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An Examination of Criminal Jury Directions in Relation to Eyewitness Identification inCommonwealth Jurisdictions

Michael Bromby,* Moira MacMillan,† and

Patricia McKellar‡

Abstract This paper presents an analytical review of judicial directions

to guard against wrongful convictions based upon erroneous eye-

witness identification evidence. Factors known as the Turnbull Rules,

derived from the English case R v Turnbull,1 are of significance within

many common law jurisdictions when considering the accuracy of eye-

witness identifications and the practice of jury directions or mandatory

warnings. The influence of these rules, together with variations in the

approach taken by Commonwealth jurisdictions, illustrates that while

the factors identified in Turnbull are to be found in the approachesadopted across the various jurisdictions studied, there is diversity in

terms of whether or not such directions are mandatory and also as to

their form and scope. The frailties of eyewitness evidence are of primary

concern to any reliable prosecution and exist irrespective of jurisdiction.

Eyewitness identification can be central to many trials and illustrates

that while the factors identified in Turnbull are to be found in the

approaches adopted across the various jurisdictions studied, there is

diversity in terms of whether or not such directions are mandatory and

also as to their form and scope. Such evidence has been the subject of

psychological evaluation and the findings of such studies cross national,

ethnic and jurisdictional boundaries. These findings, and the processes

employed to test such evidence, can be used to develop the form whichdirections to a jury may take. The requirement for a jury direction and

the scope of such a warning are two matters where there are differences

between the approaches taken by individual Commonwealth legal sys-

tems. While approaches differ according to jurisdiction, generally either

legislation and/or case law will provide guidance to judges in terms of

formulating a sufficiently robust warning. It is suggested that this wide

variation in practice is incompatible with the universal theory of honest,

yet mistaken, eyewitnesses. However, any approach which is adopted

* Research Fellow, Joseph Bell Centre, Glasgow Caledonian University.

† Senior Lecturer, Division of Law, Glasgow Caledonian University.‡ UK Centre for Legal Education, University of Warwick.1 [1977] QB 224; [1976] 3 All ER 549; (1977) 63 Cr App Rep 132.

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must also seek to prevent the balance tipping so far in favour of the

accused that a jury discounts the evidence of the honest and accurate

eyewitness. This paper will examine the approach to eyewitness identi-fication evidence adopted in several Commonwealth nations and evalu-

ate the influence of the English Turnbull case within these jurisdictions.

A universal paradigm will be suggested, which would require directions

to be given to juries in all cases which involve eyewitness evidence. Such

a direction would incorporate a common framework which the judge

would then tailor as required to take account of the circumstances of

each particular case.

I. Introduction

In this paper the principles underlying the cautioning of juries inrelation to eyewitness identification evidence are discussed. The as-

sessment of eyewitnesses is not peculiar to one jurisdiction; a cautious

approach to such evidence has worldwide relevance. Challenges to

the credibility, reliability and cogency of eyewitnesses are an issue for

the judiciary in every jurisdiction. Many studies have been undertaken

by cognitive experimental psychologists,2 whose recommendations

have only occasionally been taken on board.3 During criminal invest-

igations, the various methods of eyewitness identification employed

to identify a suspect may include: single confrontation; photographs

or video footage; or controlled line-ups. Witness recollection and the

ability of a witness to match a mental image of the offender to one of aselection of possible suspects is a cognitive process that which may be

ameliorated or disrupted by investigations, as hypothesized by

Goldstein and Chance.4 Broadly speaking, the factors influencing the

process of recollection may be divided into two categories—event

characteristics and witness/offender characteristics.5 Event charac-

teristics pertain to the scene of the identification and are always rele-

vant in all cases. Witness/offender characteristics, however, vary

according to the abilities of individual persons. It will be shown that

these two categories are of significance when considering what

should be the most appropriate form of judicial direction to safeguard

against erroneous eyewitness evidence being accepted.

The prohibition of psychological, or indeed psychiatric, evidence in

relation to eyewitness identification has restricted the introduction of

many important studies and findings. The leading English case R v

2 For example, see G. Wells and E. Loftus (eds.), Eyewitness Testimony: Psychological Perspectives (Cambridge: New York, 1984).

3 For example, see W. Wagenaar and N. Veefkind, ‘Comparison of one-person andmany-person lineups: A warning against unsafe practices’ in F. Losel, D. Benderand T. Bliesener (eds.), Psychology and law: International perspectives (de Gruyter:Berlin, 1992) 275.

4 A. G. Goldstein and J. E. Chance, ‘Visual Recognition Memory for Complex

Configurations’ (1970) 9(2B) Perception and Psychophysics 237.5 For further discussion of these categories, see A. Kapardis, Psychology and the

Law (Cambridge University Press: Cambridge, 1997) 36.

COMMON LAW WORLD REVIEW

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Turner 6 has limited the scope of admissibility and prevented the ac-

ceptance of expert testimony in this area and has influenced practice

elsewhere. It therefore falls to the jury, or the judicial fact-finder, to

evaluate eyewitness evidence without the assistance of expert testi-

mony. This has been questioned by psychologists7 on a number of

levels, particularly in relation to how the memory works and the fac-

tors which may influence the accuracy of eyewitness evidence.

The development of judicial directions, instructions or warnings to

a jury in criminal trials arguably can provide a safeguard against

erroneous convictions based upon unreliable eyewitness evidence.

The content of such a warning, in terms of its scope or the form of

words used, will be discussed and a comparison made between sev-

eral Commonwealth jurisdictions. In addition, the procedural issue of whether such directions should be mandatory in all instances of eye-

witness testimony, or solely when identification is wholly or in part

disputed, or left entirely to the discretion of the judge will be reviewed

in the light of appellate case law, law reform papers and psychological

studies.

It is arguable that the English Turnbull criteria for assessing eye-

witnesses (which will be discussed below) are insuf ficient to warn

against the complexities of visual evidence. Moreover, because it is

insuf ficient in scope, the jury direction from Turnbull, as a mandatory

procedural tool, may undermine an otherwise robust prosecutioncase. It is possible that either increasing the scope of the direction, or

providing a general framework for a warning which is then tailored to

the specifics of the case in question, would present a more effective

method for ensuring that a jury does not arrive at an unsafe verdict.

The scope and applicability of the Turnbull direction has been the

subject of discussion since 1976.8 The perennial problem of eye-

witness evidence indicates that this issue has not yet been resolved in

the criminal courts. The broader issues of pre-trial procedures and the

use of expert witnesses are pertinent to the analysis of eyewitness

evidence but are beyond the scope of this article. Likewise, the

authors have restricted their review to several Commonwealth juris-

dictions where English law may be expected to feature to a greater or

lesser extent, given the effect of the Statute of Westminster 1931 and

6 [1975] QB 834; [1975] 1 All ER 70; 60 Cr App Rep 80.7 R. Schmechel, T. O’Toole, C. Easterly and E. Loftus, ‘Beyond the Ken? Testing

Jurors’ Understanding of Eyewitness Reliability Evidence’ (2006) 46 Jurimetrics177.

8 A brief Westlaw search for English citations to the case identified that Turnbullhas been applied in 23 appeal cases and considered in 35 appeal cases since 1976.

See also C. Wells, ‘Corroboration of Evidence in Criminal Trials’ (1990) 140 NLJ 1031 and R. Munday, ‘Exemplum Habemus: Reflections on the Judicial StudiesBoard’s Specimen Directions’ (2006) 70 J Crim L 1.

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EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS


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other similar provisions ensuring the legislative independence of im-

perial realms.

II. Review of the Development of EyewitnessIdentification Directions

i. England and Wales

Miscarriages of justice due to inaccurate eyewitness identifications

are not new. In England and Wales, the inquiries into the trial of Mr

Adolf Beck9 in 1904 and the arrest of Major R. O. Sheppard10 in 1925

acknowledged the erroneous identifications in those cases, but failed

to recognize the inherent weakness associated with all eyewitness

evidence. The Beck case led to the establishment of the Court of Appeal in England and Wales. In R v Williams,11 counsel for the de-

fence asked the court to give a general direction that where the only

evidence against an accused person was identification by one witness,

the jury should be warned that it would be dangerous to convict

without corroboration. The Lord Chief Justice, Lord Goddard, in

quashing the conviction due to mistaken eyewitness identification,

held that the Court of Criminal Appeal would lay down no hypothet-

ical directions for a jury, as suggested by counsel.

By contrast, in 1962 in the Republic of Ireland, the Supreme Court

held that a general warning should be given, as juries in general

might not be fully aware of the dangers involved in visual identifica-

tion: the case, People v Casey ,12 is discussed in below. The House of

Lords subsequently considered the application of a generic warning,

as applied in the Republic, in Arthurs v Attorney-General for Northern

Ireland.13 The Court of Criminal Appeal for Northern Ireland had

initially dismissed the appeal but, following the actions of the Irish

Appeal Court in Casey , certified that the decision involved a point of

law of general public importance:

When in the court of a trial on indictment, a conviction appears to

depend wholly or substantially on the visual identification of the accused

by one or more than one witness, is it in law the duty of the presiding judge to give a general warning to the jury of the dangers of acting on

such evidence?14

The appeal was dismissed by the Lords, primarily due to the evidence

of a police constable who knew the accused well and was therefore, in

the eyes of the court, able to make a reliable identification. Lord

9 Report of the Committee of Inquiry into the case of Mr Adolf Beck Cd 2315 (1904).10 Report of the Tribunal of Inquiry on the arrest of Major R. O. Sheppard, DSO,

RAOC , Cmd 2497 (1925).11 [1956] Crim LR 833.12 The People (at the Suit of the Attorney General) v Casey (No. 2) [1963] IR 33; 1

Frewen 521.13 [1970] 55 Cr App Rep 161.14 Ibid. at 163.


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Morris of Borth-y-Gest stated that ‘though specific words such as

“warning” or “danger” may not be found in the summing-up, its

whole tenor and spirit was such as to call attention to the possibilities

of making a mistake in identification and of the need to be sure that no

such mistake was in fact made’.15 He continued, obiter dicta:

I refer to cases where a witness has seen someone whom he does not in

any way know and has had over a period of time to carry in his mind ’s

eye a recollection of the person and then is at some later date asked

(either at an identification parade or at some place) to say whether he

can recognise the person whom he previously saw. In such a situation it

is manifest that dangers may result from human fallibility. I would leave

for future consideration the question whether there is need to lay down

any rule for the guidance of courts in such cases . . . I consider, there-fore, that it would be undesirable to seek to lay down as a rule of law

that a warning in some specific form or in some partly defined terms

must be given. A summing-up does not follow a stereotyped pattern. It

need contain no set form of words. Each case has its own features and a

summing-up must be related to those features and to the problems of

the particular case.16

Shortly afterwards, the Court of Appeal for England and Wales re-

ferred the following point of law to the House of Lords in R v Long :

When a conviction depends wholly or substantially upon the visual

identification of the accused by one or more witnesses to whom he had

previously been unknown and who only had an opportunity limited in

time to identify the alleged criminal at or about the time of the commis-

sion of the crime, is it in law the duty of the judge to warn the jury in

terms of the dangers of convicting upon such evidence?17

The House of Lords refused leave to appeal, thereby reaf firming the

principle that a formulated direction, such as the ‘new rule’ derived

from Casey was not required. A warning may often be appropriate,

but the decision to do so, and the exact wording was left to the

discretion of the trial judge.

The Criminal Law Revision Committee, however, in its Eleventh

Report18 recommended that a statutory obligation be placed on thetrial judge to ‘warn the jury of the special need for caution before

convicting the accused in reliance on the correctness of the identifi-

cation’. The committee had considered making an exception to this

recommendation in cases where the accused was known to the wit-

ness (such as Arthurs v Attorney-General19). However the committee

decided against such an exception as it was decided that there might

still be a danger of misidentification even where the accused is known

15 Ibid. at 168.16 Ibid. at 169.

17 R v Long (1973) 57 Cr App Rep 871 at 879.18 The Eleventh Report of the Criminal Law Revision Committee, Cmnd 4991 (1972).19 Above n. 13.

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to the witness.20 No action was taken on this recommendation of the

committee to implement a statutory warning.

In 1976, following several high profile cases of mistaken identity

and poorly conducted line-ups in England and Wales, the Devlin

Report21 provided a thorough analysis of identification evidence in

criminal proceedings. The report had been commissioned by the

Home Secretary to review all aspects of the law and procedure

relating to evidence of identification in criminal cases and to make

recommendations. An analysis of wrongful convictions due to mis-

identification in R v Virag 22 and R v Dougherty 23 formed a substantial

part of the report. In Virag , the accused was identified by 6 out of 12

witnesses at an identification parade. It emerged that, prior to the

identification parade, some of these witnesses had been shown photo-graphs of the suspect by the police. This practice, which may influ-

ence the identification of suspects by witnesses, has been researched

and shown to cause errors.24

Subsequent chapters of the Devlin Report reviewed evidence and

pre-trial procedure (such as witness questioning); procedure at the

trial (dock identification and jury direction); and post-trial procedures

(appellate and Home Of fice review). One of the main recommenda-

tions was that, in England and Wales, eyewitness identification evid-

ence alone should cease to be a basis for conviction.25 In addition, in

respect of eyewitness testimony, the judge should draw the jury ’sattention to certain aspects of the identification during the summing-

up. It was recommended that the trial judge should be required by

statute ‘. . . to direct the jury that it is not safe to convict upon eye-

witness evidence unless the circumstances of the identification are

exceptional or the eyewitness evidence is supported by substantial

evidence of another sort’.26 Such a statutory direction was never en-

acted. Although the committee did not wish to define the exceptional

circumstances in which a conviction could be secured on the basis of

eyewitness evidence, it did summarize the chief points, which in the

normal course of events, a summing-up might be expected to cover:

20 P. Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (HMSO,1976) 4.52.

21 Above n. 20.22 Unreported, Court of Appeal, Criminal Division, 17 March 1970. See also

Jenkins’s speech to the House of Commons on 8 April 1974, Hansard HC Deb, vol.872, col. 46.

23 Unreported, Court of Appeal, Criminal Division, 14 March 1974.24 J. Dysart, R. Lindsay, R. Hammond and P. Dupuis, ‘Mugshot exposure prior to

line-up identification: Interference, transference and commitment effects’ (2001)

86 Journal of Applied Psychology 1280.25 See Devlin, above n. 20 at 8.4.26 See Devlin, above n. 20 at 4.83.


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(i) The witness himself . Whether he appeared in examination and cross-

examination as careful and conscientious or as obstinate or as irre-

sponsible. Whether the experience, for example, in the case of violentcrime, might have affected an identification.

(ii) Conditions at the scene. How good the lighting levels were and

whether the vantage point afforded an uninterrupted view. How much

of the criminal was seen and whether there has been a single period or

multiple periods of observation.

(iii) Lapse of time. The duration between the observation and the sub-

sequent identification.

(iv) Description. What does a comparison show? The judge and jury

should bear in mind that the ability to identify correctly and the ability to

describe correctly are distinct.

(v) Identification parade. Whether there are any criticisms of the line-upconditions. Did any witnesses, for example, make no identification or

pick out someone other than the suspect?

(vi) Identified person. Whether the suspect is easy to recognise (distinct-

ive) or unremarkable in comparison to others (nondescript).

(vii) No circumstantial evidence. Whether other statements might have

been expected or identifiable objects retrieved that relate to the eye-

witness’s evidence.27

This list was taken, with some adaptations, from the evidence given by

the Magistrates’ Association to the Devlin Committee.28 This would

appear to be the first attempt in England and Wales to formulate

guidance, in the form of a judicial direction, for a jury to follow whenassessing the reliability of an eyewitness. The Lord Chief Justice, Lord

Scarman, had approved these points previously in an address to the

Magistrates’ Association in 1974.

Many of Devlin’s recommendations for the revision of identification

parade guidelines and procedure were incorporated into the Police

and Criminal Evidence Act 1984. However there has been no legisla-

tion in England and Wales regarding directions to the jury in relation

to eyewitness evidence. Rather, current practice was developed as a

consequence of the judgment of the Appeal Court in Turnbull.

ii. The Turnbull RulesFollowing the Devlin Report, the first case to give serious considera-

tion to eyewitness identification was R v Turnbull.29 Following Devlin’s

recommendations as to jury directions, Lord Chief Justice Widgery

acknowledged that, on occasion, eyewitness identification evidence

may be fallible. He made a distinction between cases with good qual-

ity identification evidence and those with evidence of a poorer quality.

Differing sharply from the Devlin Report, the Turnbull judgment

27 See Devlin, above n. 20 at 4.59.28 Above n. 20. The evidence from the Magistrates’ Association does not suggest

that this list had been previously published or whether these factors were incommon use to guide the judiciary in their summing-up.

29 Above n. 1.

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stated that prosecutions based solely upon a single eyewitness identi-

fication of ‘good quality ’ should not fail automatically. This implies

that good eyewitness identification on its own should be suf ficient to

secure a conviction without the requirement for further corroborative

evidence. Although ‘good identification evidence’ and ‘poor identi-

fication evidence’ may be easy to define at extremes of the spectrum,

cases which fall between the two cannot be classified so easily. The

majority of cases where identification is disputed will present evid-

ence either in between the two extremes or scattered along the entire

spectrum of quality. The question of suf ficiency for prosecutions

based on eyewitness evidence will still arise in a majority of cases:

Whenever the case against an accused depends wholly or substantially

on the correctness of one or more identifications of the accused whichthe defence alleges to be mistaken, the judge should warn the jury of the

special need for caution before convicting the accused in reliance on the

correctness of the identification or identifications.30

A set of criteria, subsequently known as the Turnbull Rules, was out-

lined in the judgment. Subject to being given the appropriate direc-

tion by the presiding judge, these rules were intended to enable a jury

to evaluate competently eyewitness identification evidence. These

rules have become widely accepted as the governing test for evaluat-

ing identification evidence, cited or referred to by most subsequent

cases dealing with this issue in England and Wales and within other

common law jurisdictions.

The following factors summarize the Turnbull Rules:

1. the visibility and lighting conditions at the material time;

2. the distance between the eyewitness and the perpetrator;

3. the duration of observation by the eyewitness;

4. whether the observation of the perpetrator was impeded;

5. whether the perpetrator was known to the eyewitness;

6. the period of time between the observation and the reporting of

the incident to the police;

7. the reasons why the eyewitness recalls that the perpetrator was

at the scene;8. the differences between the description of the perpetrator

given by the eyewitness and the actual appearance of the

suspect.

Interestingly, these eight factors reflect the Magistrates’ Association

list, with some additions and alterations. Although Lord Widgery was

clearly rehearsing the Devlin recommendations, the subsequent adop-

tion of his dictum by the courts does not deliver the recommendation

for a statutorily implemented jury direction.

It is therefore established that whether a warning is necessary de-

pends upon the quality of the eyewitness evidence. The test for issuing

30 (1977) 63 Cr App Rep 132 at 137.


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a warning is whether an identification may be, or is argued to be

mistaken. In an attempt to curb any rigidity or a mandatory form of

words arising from Turnbull, Scarman LJ in R v Keane31 noted the

following:

It would be wrong to interpret or apply Turnbull inflexibly. It imposes no

rigid pattern, establishes no catechism, which a judge in his summing-

up must answer if a verdict of guilty is to stand. But it does formulate a

basic principle and sound practice. The principle is the special need for

caution when the issue turns on evidence of visual identification: the

practice has to be a careful summing-up, which not only contains a

warning but also exposes to the jury the weakness and dangers of

identification evidence both in general and in the circumstances of the

particular case.32

From this analysis of case law, two basic principles arise: firstly, the

necessity, or requirement for a jury direction to be given; and

secondly the form of words to be used, should a warning be given. It

may be that the rehearsal of the Magistrates’ Association list in the

Turnbull dictum has prevented any variation in form, or indeed scope,

in subsequent cases. A jury direction to return a verdict of acquittal

also raises the issue of a blurring of the boundaries between the

separate functions of the judge and the triers of fact (i.e. the judge or

jury).

Beyond the eight Turnbull factors, further elements may be relevant

to the interpretation of eyewitness evidence. Many studies into thepsychology of witness recollection and identification also take into

account the crime type; the type of weapon or force used during the

incident; and an indication of the level of stress upon the witness at

the material time.33 These elements may still be relevant even if the

eyewitness was not the victim in the case. The type of event and the

involvement of a weapon may elevate the stress levels of an observer.

Although stress is a physiological characteristic of the witness, and

not a physical factor of the event, it is the combination of crime type

and the weapon or force used or threatened that creates the elevation

of stress levels. Therefore, rather than trying to assess the arousallevels of the witness, certain combinations of these event character-

istics will carry implicit elevated stress levels unless otherwise re-

butted. Known as the ‘ Yerkes–Dodson Law’, cognitive ef ficiency is

said to decline when arousal is beyond an optimal point.34

31 (1977) 65 Cr App Rep 247.32 Ibid. at 248 per Scarman LJ.33 J. Easterbrook, ‘The Effect of Emotion on the Utilization and Organization of

Behavior’ (1959) 66 Psychological Review 183.34 R. Yerkes and J. Dodson, ‘The Relation of Strength of Stimulus to Rapidity of

Habit Formation’ (1908) 18 Journal of Comparative Neurology and Psychology 459;and more recently in relation to eyewitness testimony, see S. M. Kassin, P. C.

Ellsworth, and V. L. Smith, ‘The general acceptance of psychological research oneyewitness testimony: a survey of the experts’ (1989) 44 American Psychologist 1089.

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Accordingly, the Turnbull Rules are more limited in scope than

current research would indicate that they need to be. Additional fac-

tors which may be equally important are: the type of crime com-

mitted; whether a weapon was used to commit the crime; and

whether force was used during the commission of the crime.

The Turnbull Rules, as they stand, subsequently have been applied

within many common law jurisdictions. The ways in which they have

been implemented, or referred to, makes for an interesting compar-

ison as to how eyewitness evidence (which does not differ across

jurisdictions) is evaluated and accepted as credible and reliable. Other

jurisdictions had considered and implemented safeguards long before

the Turnbull judgment and the Devlin Report in 1976. However, many

common law jurisdictions have adopted or adapted this particular jury direction. It is interesting to consider the alternative approaches

developed within non-common law jurisdictions where Turnbull has

not been adopted in any formal sense, but where the same issues have

been addressed in other ways. This paper will discuss how the

Turnbull Rules have been applied in other common law jurisdictions

prior to considering the approach of mixed systems such as Scotland

and South Africa.

iii. Republic of Ireland

Although Ireland is not part of the Commonwealth, the former Irish

Free State had inherited English law and procedure, having formerly been part of the United Kingdom. Current Irish law requires a judge

to advise the jury to consider the reliability of eyewitness identifica-

tion evidence. A decision handed down 13 years before the Devlin

Report in England and Wales, People v Casey (1963)35 provides the

authority on identification evidence for the Republic of Ireland. It is of

significance within Commonwealth and common law jurisdictions

and therefore is worthy of discussion here:

[T]he nature of . . . directions and warnings must depend on the facts of

the particular case. But, apart from the directions and warnings sug-

gested by the facts of an individual case, judicial experience has shownthat certain general directions and warnings are necessary in every case

and that particular types of warnings are necessary in particular types

of case.36

The Casey judgment appears on the whole rather vague as to how the

jury should be directed to avoid any potential miscarriage of justice.

No criteria or formulaic warning were provided, leaving the judge

with some discretion as to how to elucidate the inherently fallible

aspects of eyewitness testimony. Nevertheless, a failure to direct the

jury in the manner laid down by the Supreme Court in Casey is

35 Above n. 12.36 Above n. 12 at xxx.


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suf ficient to entitle the accused to succeed in his appeal to have the

verdict set aside and a retrial ordered.

Subsequent Irish cases have referred to the Turnbull judgment

when discussing observed differences between the descriptions of the

assailant and the accused,37 the amount of time that a witness was

able to observe the perpetrator,38 and the need for a judicial warning

regarding recognition in addition to identification.39 Turnbull can only

be regarded as persuasive in Ireland, and cannot be cited as preced-

ent. The acceptance of the Turnbull Rules as containing valid criteria

for constructing a judicial warning elaborates upon the basic require-

ments of Casey . Conversely, this adoption of Turnbull criteria should

not prevent an Irish trial judge from issuing a Casey warning on a

non-Turnbull criterion, for example a witness characteristic such asstress.

While the Irish case law demonstrates the universal application of

the Turnbull Rules, there is a clear reminder that other factors can and

should be taken into account. Although the list should not be seen as

exhaustive or definitive in England and Wales, it remains a source of

both direction and content. The discretionary position in Ireland

avoids any rigid tabulation or formulaic warnings, as proscribed by

Scarman in Keane. The lack of form or scope in Casey has prevented

the escalation of the judgment into a mantra. Nonetheless, the func-

tion of Turnbull as an aide-memoire reminds all parties concerned of

the principal dangers inherent in eyewitness evidence should theform of words or the scope of a warning be raised.

iv. Canada

Prior to 1976, the Ontario Court of Appeal had adopted the Irish

judgment in Casey as a model for handling identification evidence, as

described in R v Sutton.40 Subsequent to the Turnbull case in 1976,

Lord Widgery ’s judgment was adopted in Alberta, as stated in R v

Duhamel41 and R v At field.42 Following these two cases, most other

Canadian provinces have since accepted Turnbull as the authoritative

benchmark for evaluating eyewitness evidence in so far as the neces-

sity for a special instruction is concerned.43 There are mixed views onwhether Turnbull actually requires a special form of words but the

balance of Canadian opinion favours the Scarman view, as expressed

37 The People v Pringle (1981) 2 Frewen 57.38 Gallagher v The Revenue Commissioners, O’ Callaghan and the Government of

Ireland [1995] IR 55.39 Recognition involves a suspect known to the witness (see The People v Stafford

(1983) 2 Frewen 119) unlike the identification of an unknown person in Casey .40 (1970) 3 CCC 152. Also see Devlin, above n. 20 at 192.41 [1981] 1 WWR 22; 56 CCC (2d) 46.

42 (1983) 25 ALR (2d) 97; 42 AR 294.43 For Quebec, see R v Deschamps (1980) 60 CCC (2d) 364; for Manitoba, see R v

Sophonow (1986) 25 CCC (3d) 415.

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in the English case Keane,33 that the form should be left to the discre-

tion of the trial judge in the light of the particular circumstances of

the case.

In British Columbia, there initially appeared to be some reluctance

to adopt a mandatory jury direction at all.45 However, the influence of

Turnbull is apparent from subsequent appeal cases where the need for

a direction was recognized, but the adoption of a particular form of

words was eschewed, as observed in R v Edwardson:

This appeal raises directly the question of when a jury should be given a

special instruction on the inherent frailties of eyewitness identification

evidence. That is a very different question from what form such instruc-

tion should take, although the two issues are often merged into one in

the cases. Over the years there has been a distinct reluctance on the partof appellate courts to establish any general rule governing the require-

ment for a special instruction on eyewitness identification evidence. A

review of the cases, however, suggests that this reluctance stems more

from a desire to avoid endorsing as obligatory any particular form of

language, rather than from a refusal to acknowledge that there are some

cases where a special instruction of some sort is necessary.46

The trial judge in this case had not issued a warning as he saw noth-

ing ‘frail’ in the evidence of identification, concluding that the neces-

sity for a warning was not present. The piecemeal development of the

law on whether a special direction is required in Canadian law has

evolved through a number of cases, as referred to in Edwardson anddiscussed below.

In Virk ,47 it was established that a warning was necessary when

eyewitnesses had been shaken on cross-examination. A warning was

also regarded as necessary in Hang 48 when the presence of the ac-

cused at the scene was not in dispute, but the question of who com-

mitted the offence was still an issue. These cases both refer to

Spatola,49 which did not provide for a mandatory direction, but ac-

knowledged the frailties of eyewitness evidence and ordered a retrial

due to the absence of a jury direction in that particular case:

Without taking a position on whether in all cases where a convictionrests on identification evidence the trial Judge must direct the jury to

view it with caution or warn them of its fallibility, I think it mandatory to

give an instruction of this character where the identification evidence is

offset either by evidence of a contrary nature or by evidence of a failure

or inability of another witness equally in a position to see the alleged

offender, to make an identification.50

44 Above n. 31.45 R v McCallum (1971) 4 CCC (2d) 116 (BCCA).46 R v Edwardson (1993) 77 BCLR (2d) 362 J at paras 28–9, per Wood.47 R v Virk and Sihota(1983) 33 CR (3d) 378.

48 R v Hang (1990) 55 CCC (3d) 195.49 R v Spatola (1970) 4 CCC 241 (Ont CA).50 Ibid. at pg 248, per Laskin JA.


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In his dissenting argument, Aylesworth JA concluded that the charge

(which was a summary rather than a specific direction on the inherent

dangers associated with eyewitness testimony) was adequate. Citing

the earlier Ontario decision in Sutton,51 he agreed with the principle

observed in Casey that the necessity for a warning was at the discre-

tion of the trial judge:

From the course of the evidence and from what the trial Judge said as to

identification, the jury could not fail to recognize that this was a vital

issue and in my view . . . did not for the purposes of a fair trial require a

warning to the jury concerning the frailties of identification evidence

generally . . .52

In addition, the Supreme Court of Canada in Vetrovec v R53 noted that

a specific warning to the jury becomes all the more necessary wherethe complainant’s identification is uncorroborated. Undoubtedly,

these cases illustrate no clear rule or broad expression of principle

whereby a jury direction may or may not be required in other cases.

Returning to Edwardson, the British Columbia Court of Appeal pre-

ferred to adopt the necessity rule as applied by Turnbull, namely

whenever the case against the accused depends on identification

which the defence alleges to be mistaken, a charge to the jury is

required. This approach encapsulates previous narrowly defined cat-

egories while preventing an overarching rule applicable to all cases

involving eyewitness evidence, whether contested or not.

Wood J, in Edwardson, noted that a reluctance to adopt a generalrule arose from concerns that a jury direction on the frailties of eye-

witness evidence may, in effect, be damaging to an otherwise safe

conviction. In robust cases with reliable evidence, a special instruction

may have the effect of raising undue concerns in the minds of the jury.

Therefore the possibility may arise that a jury could be overcautious

and reject an accurate identification and acquit where they should

convict.

This raises the question of whether the process of justice should err

in favour of the accused, however Wood J suggested that the way in

which the jury direction was cast and indicating the reasons why a

warning is necessary in that particular case (i.e. the scope and form of

direction) should suf fice. He concluded that:

In these circumstances, it is not surprising the trial judge initially formed

the view the identification evidence was not ‘frail’, and indeed, by com-

parison to many such cases, it was not. But whether a special instruction

on the inherent frailties of eyewitness identification should be given to

the jury does not depend upon the trial judge’s subjective view of

the weight of such evidence, for the ‘frailty ’ to which that warning is

directed is the propensity for honest and convincing witnesses to be

mistaken. That is why such a warning must be given whenever the case

51 Above n. 40.52 Ibid. at pg 245, per Aylesworth JA.53 (1982) 67 CCC (2d) 1 at 17.

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against the accused depends on eyewitness identification evidence

which is challenged, and not just in those cases where the judge is of the

view that the evidence is of little weight.54

Turning to the issue of scope and the form of words to be used, Wood

J had earlier ruled on the content of a jury direction in R v Mastin.55

The judgment summarized and recommended the use of two alternat-

ive, but very similar, sets of instructions. The first set is the Ontario

Model Jury Charges which arise from early Ontario cases, although

in appellate judgments they first appear uncited in the British

Columbian case R v Virk and Sihota.56 The second set is the Canadian

Criminal Jury Instructions (CRIMJI).57

In earlier cases where a direction was seen to be necessary, the

Ontario Model Jury Charges on identification had been applied. Theseinstructions were quoted extensively in both Virk ,58 where the lack of a

specific formula was expressly recommended (Anderson JA set out in

full the Ontario Model Jury Charges without further comment) and

Hang ,59 where each of the seven instructions were reviewed in rela-

tion to the facts in that case.

The Ontario Model Jury Charges pre-date the Turnbull judgment in

England, and their provenance is relatively unknown:

Original observation — how long did the witness have the accused

under observation? At what distance? In what light? Was the observa-

tion impeded in any way, e.g. by passing traf fic or a press of people?Had the witness ever seen the accused before? How long a time elapsed

between the original observation and the subsequent identification to

the police? Did the accused have any special distinguishing features,

either physical or in his speech or dress?

Subsequent identification — was the identification wholly independent

and not induced by any suggestion? If photographs were shown to

witness, were they representative? If witness identified accused in court

after being picked out of a photograph, is he merely identifying the

accused with the photograph, rather than with the man originally ob-

served? Was the subsequent identification made by reference to features

not mentioned to police when the witness was first seen by them?

Identification parade — has it been shown that nothing whatever wasdone to indicate the accused to the witness, either by showing a photo-

graph or by description, or an indication of his place in the line-up? Was

the accused conspicuously different from others in the line-up in age,

build, colour, complexion, dress or otherwise?

Remind the jury of any specific weaknesses in the identification evid-

ence: e.g. any material discrepancy between the description given to the

police in the first instance, and his actual appearance; contradictory

54 Above n. 46 at para. 45.55 (1991) 65 CCC (3d) 204.56 (1983) 33 CR (3d) 378.

57 (2nd Edn) ch. 4.55.58 Above n. 56.59 Above n. 48, per McEachern CJBC.


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descriptions; failure of another witness with equal opportunity to recog-

nize accused.

Remind the jury that even though recognition by the witness of some-one previously known to him is usually stronger than identification of a

stranger, mistakes are sometimes made in recognition of close

relatives and friends.

The next section of the Model Charge relates to evidence which is cap-

able of supporting an identification. This question does not arise on this

appeal, and I shall not deal with it.

If the quality of the identification is poor, e.g. based on a fleeting

glance or is a mere impression, with no description of the character-

istics which distinguish the accused from any other person, e.g. ‘That’s

the man’, then, unless there is supporting evidence, the jury should

be clearly instructed that, in the view of the judge, the identificationdoes not provide a safe basis for conviction.

Finally , instruct the jury that if, after careful examination of the evidence

in the light of the circumstances, and with due regard to all the other

evidence in the case, they feel satisfied beyond reasonable doubt of the

correctness of the identification, they are at liberty to act upon it.

The CRIMJI instructions are substantially similar and are therefore

not repeated here.

I think it would be provident to use either one or the other as a guide in

any case where identification is in issue and proof depends on the

opinion evidence of one or more eyewitnesses. I do not think that it is a

profitable exercise to argue about whether such a witness’s evidence

was positive, less than positive, shaken on cross-examination (whatever

that may mean), or apparently suspect for other reasons such as poor

lighting, fleeting glimpse, etc., before deciding whether specific instruc-

tions on the inherent dangers of eyewitness testimony are required.

The truth of the matter is that all eyewitness identifications are sub-

ject to certain inherent weaknesses, and we should not be coy about

recognizing that fact and telling juries that which our accumulated

experience in this dif ficult business has taught us, and which they can-

not necessarily be expected to know. For the most part the special

instructions in CRIMJI pass that knowledge along in a way that can be

easily understood.’60

v. Australia

A study of case law in Victoria, Tasmania and Western Australia

established that a detailed warning must be given to the jury in rela-

tion to disputed eyewitness identification evidence.61 In these cases,

Turnbull was quoted with approval and the formula adopted verbatim.

The New South Wales Court of Criminal Appeal, however, maintained

its position that it would not follow the English law or treat it as laying

60 Above n. 46 at 219, per Wood J.61 See R v Burchielli (1981) 1 VR 611; McCusker v R [1977] Tas SR 140; Sutton v R

[1978] WAR 94.

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down anything more than suggestions that trial judges should con-

sider.62 Within these state authorities, a ‘checklist of specific heads of

warnings’ should not be followed, but rather ‘the jury must not only

be warned appropriately and thoroughly, but that they must be given

assistance in regard to the way in which the warning of the need for

caution is to be taken into account’.63 Turnbull, in the court’s view,

was, and indeed still is, interpreted as:

a source from which to determine how much by way of categorisation

needs to be introduced into a summing-up, in a given case, in order to

ensure that a jury is warned with the requisite degree of care and

thoroughness and that their attention is adequately and meaningfully

directed to the matters of evidence to be taken into account in their

ultimate determination of the issue of identification.64

The Australian Law Reform Commission proposed in 1985 that eye-

witness identification should be the subject of rules of admissibility

and tighter discretionary controls, as part of a comprehensive and

uniform law of evidence.65 It was proposed that the judge should, at

the request of the accused, warn the jury of the need for caution in

acting on eyewitness identification evidence. In particular, the jury

should be warned not to find that the defendant committed the rele-

vant offence on the basis of identification evidence unless there were

either special circumstances in relation to the identification or sub-

stantial evidence, other than identification evidence, implicating the

accused. In the absence of such evidence, the court should direct an

acquittal. The proposals were criticized on the ground that they

should be mandatory rather than at the request of the accused. They

were also criticized on the ground that they went too far: the judge’s

obligations should be entirely discretionary and there should be no

power to take the issue away from the jury.66

These proposals found statutory form in 1991, when both the Com-

monwealth and New South Wales governments introduced imple-

menting legislation. Known as the ‘uniform Evidence Acts’,67 the

Standing Committee of Attorneys-General gave support to a uniform

62 See R v Allen (1984) 16 A Crim R 441 and citations within to Albert (unreported,Court of Criminal Appeal, New South Wales, 2 December 1977); see also SamuelsJA in Aziz [1982] 2 NSWLR 322l; and R v De-Cressac [1985] 1 NSWLR 381.

63 See R v Allen, above n. 62 at 444, per Street CJ.64 Ibid.65 Australian Law Reform Commission, Evidence, Interim Report 26 (1985) paras.

128–9.66 Australian Law Reform Commission, Evidence, Final Report 38 (1987) paras.

191–2.67 The Evidence Act 1995 (Cth) applies to all federal courts across Australia, but not

to state/territory courts exercising federal jurisdiction; the Evidence Act 1995(NSW) applies to all New South Wales’ state courts, including cases involvingfederal crimes.


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legislative scheme throughout Australia. The Commonwealth’s Evid-

ence Act 1995 applies by agreement to the Australian Capital Territ-

ory and was also mirrored by legislation in Tasmania68 and Norfolk

Island.69 Section 116 of the uniform Evidence Acts requires that:

(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 identi-

fication 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.

This requires a statutory warning, similar to that recommended by theEnglish Law Reform Committee.70 The requirement for a warning, on

a literal interpretation of the section, goes beyond cases where identi-

fication is disputed to include all cases where eyewitness evidence is

admitted. The scope of the warning, however, remains discretionary

with no indication as to possible or suggested areas on which a jury

requires judicial direction.

In Dhanhoa,71 on appeal from the Supreme Court of New South

Wales to the High Court of Australia, it was submitted that the trial

judge had failed to give directions concerning identification evidence

as required by s. 116. The Evidence Act was interpreted by Gleeson CJ

to apply only when the issue of identification was in dispute. This fliesin the face of the statutory requirement but is in line with English case

law post Turnbull.

Callinan J, in his dissenting opinion (although agreeing with the

Bench on the issue of the interpretation of s. 116) stated:

I have formed the opinion that s. 116 should not be given a reading

which requires a special precautionary direction unless there is a rele-

vant issue of identification, for three reasons. First, the use of the word

‘admitted’ instead of ‘tendered’ or ‘received’ tends to suggest a dispute

with respect to identification, and therefore a controversy on the evid-

ence about it. Secondly, the use of the words ‘special need for caution’

implies that there is something in the case in relation to identificationwhich calls for the special treatment of the evidence of identification: if

there were no issue about it there would not be a need, let alone any

special need for caution. Thirdly, because s. 116(1)(b) of the Act draws

attention to the circumstances of the case, it is to those that regard must

be had. And if in the circumstances of the case identification is not

disputed, then a direction counselling caution about it, would seem to a

jury to be bizarre.

I would conclude therefore that s. 116 applies only to those cases in

which the identification of the accused as the, or a perpetrator of the

68 Evidence Act 2001 (Tas).

69 Evidence Act 2004 (NI).70 See above n. 18.71 Dhanhoa v R (2003) 199 ALR 547.

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relevant acts, or as the person omitting to do the relevant acts is in

issue.72

The Dhanhoa interpretation is in line with previous Australian judg-

ments of both federal and state courts prior to the implementation of

the uniform Evidence Acts. The federal court in Tomicic73 rejected an

appeal, stating that the Turnbull-style direction was adequate and that

the judge had not erred in his direction to the jury. In Domican74 the

opinion of Mason CJ is of interest where he states:

whatever the defence and however the case is conducted, where evid-

ence as to identification represents any significant part of the proof of

guilt of an offence, the judge must warn the jury as to the dangers of

convicting on such evidence where its reliability is disputed.75

This opinion appears to start with a broad requirement for a judicial

warning, but is then limited to instances of disputed eyewitness evid-

ence. Case law also suggests that the terms of a warning need not

follow any particular formula76 and that a warning in broad or general

terms is insuf ficient.77

In the Australian Law Reform Commission’s Issue Paper78 two

basic questions were raised. Firstly, should s. 116 of the uniform

Evidence Acts be amended to clarify that directions to the jury in

relation to identification evidence are not mandatory and, if so, how?

Secondly, are there any other concerns in relation to identificationevidence and the uniform Evidence Acts and, if so, what are those

concerns and how should they be addressed?

A review of the uniform legislation in 2005 suggested that the

Dhanhoa remedy, in relation to a requirement for a direction in all

cases, and the appellate rules, which prevent appeals succeeding

solely on technicalities, are suf ficient.79 Any amendment to s. 116 (by

the insertion of ‘. . . and the reliability of that evidence is in dispute

. . .’) may, according to the Commission, create problems of inter-

pretation for other provisions within the Act that are phrased in sim-

ilar terms.

Victoria, Queensland and the Northern Territory have also reviewed their counterpart laws of evidence with a view to harmonizing

72 Ibid. at 551.73 Tomicic v R No ACT G79 of 1987 FED No 495 (23 August 1989).74 Domican v R (1992) 173 CLR 555.75 Ibid. at 561.76 See R v De-Cressac, above n. 62 at 384; and R v Finn (1988) 34 A Crim R 425 at

435.77 Kelleher v R (1974) 131 CLR 534 at 551.78 Australian Law Reform Commission, Review of the Evidence Act 1995, Issue

Paper 28 (2004) at paras. 10.15–18.79 Australian Law Reform Commission, Review of the Uniform Evidence Acts,

Discussion Paper 69 (2005) at paras. 12.39–46.


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their legislation.80 In the interests of uniformity, legislative amend-

ments to the uniform Acts should be mirrored by other participants,

and newcomers, in the Australian Commonwealth. Victoria, a state

that has not yet enacted the uniform Evidence Act, does not discuss

the jury direction for eyewitness evidence in its 2006 report,81 yet

appears committed to joining the uniform regime, as does Western

Australia.82 The Queensland Law Reform Commission, however, re-

ported a preference to amend s.116 prior to any enactment of the

uniform legislation within that particular state.83 The Northern Territ-

ories Law Reform Commission recommends adoption of the uniform

scheme84 with no discussion of s. 116 at this stage.

vi. New Zealand

There is a statutory requirement for a jury direction in New Zealand,

but no requirement as to the form it should take.85 Accordingly, the

approach is similar to that taken in Australia. However, the New

Zealand statute clearly states that such a warning is only necessary

where identification is an issue, whether wholly or substantially. It is

interesting to note that this caveat as to when a statutory warning is

required was established in 1982, some 15 years before the Australian

uniform Evidence Acts that omitted to limit any statutory warning:

(1) In a criminal proceeding tried with a jury in which the case against

the defendant depends wholly or substantially on the correctness of one

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.86

80 Australian Law Reform Commission, Uniform Evidence Law , Final Report 102(2005); a joint publication with New South Wales Law Reform Commission(Report 112) and Victorian Law Reform Commission (Final Report).

81 Victorian Law Reform Commission, Implementing the uniform Evidence Act , FinalReport (2006).

82 See Law Reform Commission of Western Australia recommendation in ALRCDiscussion Paper 69, above n. 79 at para. 2.2.

83 Queensland Law Reform Commission, A Report on the uniform Evidence Act ,Report 30 (2005) at 27.

84 Northern Territories Law Reform Commission, A Review of the uniform Evidence Acts, Report 60 (2006) at para. 8.60.

85 A direction was first implemented by the Crimes Act 1961, s. 344D. Sections 344Bto 344D were inserted, as from 11 December 1982, by the Crimes Amendment Act

1982, s. 2.86 The Evidence Act 2006, s. 122 substantially re-enacted the provisions in the

Crimes Act 1961, s. 344D.

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Turnbull is referred to in New Zealand case law and clearly provided

the impetus for the legislation. In R v Hewett , Goddard J stated:

Turning to the second limb of appeal, the s. 344D Crimes Act 1961

warning required in a trial where there is identification evidence of a

stranger of the fleeting variety does not specify the use of any particular

words or formula. The provisions of s. 344D followed the statements of

the English Court of Appeal in Turnbull, which made clear that the form

in which a warning is to be given is a matter for the trial Judge. So long

as the trial Judge warns of the special need for caution before convicting

in reliance on the correctness of identification evidence, and advises the

reasons for that warning in terms of the possibility that a mistaken

witness can be a convincing witness, the direction will comply with s.

344D. As the Court said (at p552), ‘provided this is done in clear terms

the Judge need not use any particular form of words’.87

Despite having a statutory warning, the appeal courts still refer to

Turnbull in assessing the quality or suf ficiency of the warning.

Robertson J in O’ Hara stated:

The Judge, in terms of Turnbull . . . had properly warned the jury about

the need for caution. The witnesses had themselves been careful in what

they had said. If they had been adamant and absolute they probably

would have been attacked for being too confident.88

In 1991 the New Zealand Law Commission published the first of a

series of discussion papers on aspects of evidence law and codifica-tion,89 which resulted in the Evidence Act 2006. The Commission was

of the view that even with a more detailed admissibility inquiry, juries

still need to be cautioned about identification evidence. The Commis-

sion originally drafted a detailed judicial direction that contained ref-

erences to research on memory:

In addition to the matters set out in [s. 344D] or in elaborating one or

more of those matters, a warning could include, if relevant, the

following:

• The dif ficulty of assessing the reliability of identification evidence,

particularly as a witness’s confidence, or lack of confidence, does not

necessarily indicate how reliable their identification evidence is;

• The ways in which events surrounding the witness’s observation of

the defendant may have influenced the quality of the identification

evidence (eg, time of observation, lighting, distance of witness from

offender, weather conditions, the stress inherent in the situation,

whether violence was used, or whether a weapon was involved);

• The ways in which any factors particular to the individual witness

may have influenced the quality of the identification evidence (eg,

poor eyesight or hearing, or bias);

87 R v Hewett [2003] NZCA 291 at para. 24.

88 O’ Hara v R [2005] NZCA 43.89 New Zealand Law Commission, Evidence Law: Codification, Preliminary Paper 14

(1991).


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• The ways in which any factors relating to the defendant may have

influenced the quality of the identification evidence (eg, the use of a

disguise);• The fact that if the witness and defendant are of a different race/

ethnicity, the identification may be less reliable;

• The greater the period of time between the sighting and the identi-

fication, the greater the likely deterioration of memory;

• The fact that memory of peripheral detail, and the quality or con-

sistency of descriptions given by the witness, may not be indicators

of reliability.90

Commentators did not support such an approach, arguing in favour

of shorter and simpler jury directions: supporting the current provi-

sion, but noting the desirability of judges tailoring the direction to the

circumstances of the particular case. The Law Commission agreedwith this approach.91

Therefore, it is interesting to note that despite apparent differences

in the wording of their respective Acts, both the Australian and New

Zealand jurisdictions require directions only when eyewitness identi-

fication is an issue at trial. Although statute provides for a require-

ment, the form of words and the scope of the warning are not

prescribed in the Acts. The concept of standardized, model or pattern

jury directions will be considered below as an alternative to the

tailored, yet discretionary content of directions seen here.

vii. Scotland

In Scotland, which is a separate jurisdiction within the United King-

dom, the Turnbull case cannot be regarded as precedent, it is merely

persuasive, and therefore jury direction with regard to eyewitness

identification is largely left to the discretion of the trial judge. Unlike

Ireland, there is no reference to the Turnbull judgment in the criminal

courts. As a jurisdiction which draws heavily on the civilian tradition,

Scots law is one of few legal domains to prohibit convictions based

upon uncorroborated identification evidence. A second independent

identification or further circumstantial evidence will be suf ficient to

corroborate an identification, if accepted by the jury. The suf ficiency of eyewitness identifications in Scotland was discussed widely in the

cases Reilly 92 and Ralston.93 In Reilly , an appeal was allowed due to the

lack of corroborating evidence during the initial trial. The eyewitness

was not able to observe fully the two perpetrators as masks obscured

their faces. The Ralston case was distinguished from Reilly , as the

‘emphatic positive identification’ in the case required less corroborat-

ing evidence. In the latter case, the principal eyewitness was able to

90 New Zealand Law Commission, Evidence: Evidence Code and Commentary ,Report 55, Vol. 2 (1999) para. C398.

91 New Zealand Law Commission, Evidence: Reform of the Law , Report 55, Vol. 1

(1999) paras. 216–7 and 492.92 Reilly v HMA 1981 SCCR 201.93 Ralston v HMA 1987 SCCR 467.

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identify the perpetrator in a line-up and two secondary witnesses

were able to provide less accurate descriptions in corroboration.

Therefore, unlike the position in England and Wales, Ireland,

Canada and some American states, a judicial warning regarding iden-

tification is not established in Scots law. The Bryden Committee,94

reporting two years after Devlin, took the view that that a Turnbull-

style jury direction need not be given in cases which involve eye-

witness identification. The findings of the committee endorsed a

Practice Note previously issued in 1977.95 The Bryden Report made

clear that the discretion of the trial judge was a key feature of Scots

law and that the function of a trial judge is to direct the jury with

regard to the law. No summing-up of the facts is either required or

desired: this distinguishes Scots law from other jurisdictions wheremention of the material facts is built into a Turnbull-style warning. The

Practice Note does not have the authority of statute or an appeal court

judgment. If a Scottish appeal court were to find that a trial judge

should direct the jury with regard to identification evidence, the judg-

ment would supersede the Practice Note and become a Scottish equiv-

alent of the Turnbull judgment.96

In 1990 in McAvoy 97 the Scottish Court of Criminal Appeal

considered the need for jury direction in certain cases. No specific

formula, as found in R v Turnbull, was provided thereby avoiding

appeals being raised on technicalities rather than serious miscar-

riages of justice. The Lord Justice Clerk (Ross) stated:

When identification is in issue in a case, the trial judge may feel it

desirable to remind the jury that errors can arise in identification and

that there have been cases of mistaken identity with the result that the

jury must consider the evidence of identification with some care. A trial

judge may go on to remind the jury (if this is the case) that the witnesses

were not familiar with the person whom they identified prior to the

occurrence of the alleged crime. That being so the jury may wish to ask

themselves how long the witness had the person whom he identified in

view — whether it was a mere fleeting glance or something more.

Whether the person concerned was clearly visible. He may also suggest

that the jury may wish to ask themselves how positive the identificationwas and whether the person identified was nondescript or had some

distinctive features and characteristics. However, precisely what the

trial judge says in this connection is a matter for his discretion . . . We

regard what the trial judge said to the jury about identification in this

case as the bare minimum which was required. It would have been

better practice for the trial judge to have said more to the jury on this

subject, but the jury can have been in no doubt that identification was

94 W. J. Bryden, Identification Procedure under Scottish Criminal Law. Report to theScottish Home and Health Department , Cmd 7096 (1978).

95 Ibid. at Appendix H (Note by Lord Justice General—Criminal Trials, 18 February

1977).96 Ibid. at para. 3.07.97 McAvoy v HMA 1992 SLT 46.


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critical and he did remind them that they had to be careful as to what

conclusions they reached.98

The direction in McAvoy included points on the duration of observa-

tion, the familiarity of the eyewitness with the accused and the depth

and accuracy of the description. This judicial warning regarding iden-

tification was followed in subsequent cases where the assailant was

partially masked,99 where the duration of the observation of the per-

petrator was an issue,100 or where the witness was under the influence

of alcohol.101 From these few cases, many of the Turnbull criteria have

been included within judicial directions in Scotland.

In contrast, the High Court in Chalmers102 upheld the deliberate

decision of the trial judge not to give any kind of jury direction. The

commentary on the appeal judgment by Sheriff Gordon103 emphas-ized the need to retain judicial discretion and that a generic warning

to the jury should not become part of criminal procedure as is the case

in England. The necessity for and the precise wording of a judicial

warning is a matter for the discretion of the judge. In summary, some

cases will require direction regarding eyewitness testimony and fail-

ure to do so may constitute a miscarriage of justice; other cases will

require no direction or revision of the facts whatsoever.

viii. South Africa

As another mixed jurisdiction, South Africa, unlike Scotland, permits

courts to make findings based upon the evidence of a single witness.

The colonies, and the Union in 1917, adopted English law with

binding authority until independence. The 30 May 1961 formula

renders subsequent English decisions persuasive only. South Africa’s

approach to eyewitness evidence developed without reference to

Turnbull, or indeed to the approach taken by any other jurisdiction.

Within the Orange Free State Provincial Division, as early as

1932,104 de Villiers JP listed factors to be taken into account when

assessing eyewitness testimony, pre-dating similar approaches within

all of the Anglo-American jurisdictions. This case formed the basis of

a cautionary rule to guard against eyewitness mistakes:[T]he uncorroborated evidence of a single competent and credible wit-

ness is no doubt declared to be suf ficient for a conviction . . . but in my

opinion that [witness] should only be relied on where the evidence of the

single witness is clear and satisfactory in every material respect.105

98 Ibid. at 50.99 For example see Farmer v HMA 1991 SCCR 986.

100 For example see Blair v HMA 1994 SLT 256; 1993 SCCR 483.101 For example see Webb v HMA 1997 SLT 170; 1996 SCCR 532.102 Chalmers v HMA 1994 SCCR 651.103 Ibid. at 656, per Sheriff Gerald Gordon QC, editor of the Scottish Criminal Case

Reports.104 R v Mokoena (1932) OPD 79.105 Ibid. at 80, per de Villiers.

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A cautionary rule can be seen as a direction designed to warn a jury

as to the dangers of eyewitness evidence and was developed under

the British colonial jurisdiction. A variety of cautionary rules survived

the abolition of juries in 1969106 by the Republic of South Africa and

remains an important part of criminal procedure. A judge sitting

alone, or with assessors,107 is still required to indicate that he or she

has considered the issues in the judgment handed down by the

court.

The factors mentioned by de Villiers were often taken as a checklist

for reliability; if none was applicable, then the prosecution testimony

was not rejected and taken to be, without cause shown, reliable evid-

ence. This reasoning is flawed for the simple reason that the prosecu-

tion’s evidence does not have to fail in order to secure an acquittal.The cautionary approach was developed further in Shekele108 to en-

sure that identification evidence was tested by directing questions to

the witness regarding the circumstances at the locus.

While receiving the approval of the Appellate Division, the de

Villiers factors are a useful tool for assessing what is referred to as the

‘cogency ’ of a witness: this goes beyond what Turnbull, and other

cases have recommended or prescribed. In assessing cogency,

Boshoff J in Mptung 109 identified three elements (observation, recol-

lection and narration) that should be taken into account when a judge

or jury is considering the value of eyewitness testimony.

(a) Observation

Boshoff J noted the following fi ve factors that affect the observational

element in relation to the scene of the incident and the witness at the

material time. The authors have elaborated upon each of these factors

(italicized commentary):

1. The accuracy of a witness will depend on their eyesight.

This is a personal factor, i.e. one of many other witness charac-

teristics, that may or may not apply to all witnesses, although

certainly of relevance in respect of those with poor physical

abilities.2. The environmental factors such as the state of the light, how far

away he/she was, whether an advantageous viewpoint was

available and the duration of observation.

106 Abolition of the Juries Act 34 of 1969. See also M. Huebner, ‘Who Decides?Restructuring Criminal Justice for a Democratic South Africa’ (1993) 192 Yale Law

Journal 961 and J. Chubb, ‘The Jury System’ (1956) 73 South African Law Journal194.

107 See Huebner, above n. 106 at 795 for a discussion on assessors as a replacement

for juries.108 R v Shekele (1953) 1 SA 636 (T), at 638, per Dowling J.109 R v Mptung (1960) (1) SA 785 (T).


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These factors are all present in the Turnbull rules. Not all eight

factors are covered here, however the remainder are present in

the following section ( recollection ).

3. Impressions of appearance may be distorted by the witness’s

prejudices and preconceptions.

In essence, physical characteristics may be inaccurately de-

scribed or, on occasion, be ascribed. It is unclear whether this

element of observation relates to cross-race identifications, any

possible familiarity with the perpetrator, or to preconceptions in

general across society as a whole.

4. The ability to form accurate impressions is affected by state of

mind.

This element may include the rather vague Turnbull factor ‘ rea-sons to remember ’ , although the wording suggests an emphasis

on the witness and may be related to attention and possibly

stress levels, which Turnbull distinctly lacks.

5. The distinctiveness of the person’s appearance.

This may also include ‘ reasons to remember ’ but with the em-

phasis on the perpetrator rather than the ability of the witness.

(b) Recollection

Following observation, recollection is the subsequent procedure of

retrieving the information that has been viewed under the conditions

as described above. Boshoff J notes the following (italicizedcommentary):

1. The strength of the memory.

Very young and very old people tend to forget more easily.

Whether the person was known to the witness can also be attrib-

uted to this element.

2. The nature of the original impression.

It can be assumed that weak observational elements will not

produce a strong subsequent recollection.

3. Overlaying of subsequent suggestions.

Photographs of possible offenders may cause an unconscioussubstitution of facial features between the physical image and the

mental recollection. Also, repeated observation of the suspect

will increase certainty and verbal suggestion can seriously di-

minish the value of identification.

All of the Turnbull factors are introduced, however the introduction of

commentary relating to procedural law here is noteworthy. It may be

comparable to guidelines relating to identification parades in England

and Wales which have introduced cognitive psychological thinking to

prevent visual or verbal overshadowing effects.110

110 G. Davies and T. Valentine, ‘A review of codes of practice for identification’ (2000)7 Expert Evidence 59.

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(c) Narration

This element of cogency appears to reflect the witness’s ability to

provide a clear and coherent account of the events. Narration appears

to form part of the overall admissibility of the testimony with regard

to competency of a witness. Lunacy, or diminished mental capacity,

has been abandoned as a bar to competency, although Boshoff J was

more concerned with the ability to give a coherent account which

would suggest honesty rather than mental capacity.

These three elements combined to form the basis of the modern

cautionary rule in South Africa. Two appellate cases, Webber 111 and

Sauls,112 reiterate that there is no magic formula for assessing eye-

witnesses. The cautionary rule ‘may be a guide to the right decision,

but . . . the exercise of caution must not be allowed to displace theexercise of common sense’.113 Although these cautionary factors are

primarily concerned with the evidence of a single witness, they

are useful tools for assessing the weight which may be attached to the

totality of evidence when corroboratory evidence is presented in con-

junction with eyewitness testimony.

The Appellate Division expressed the dangers of relying upon eye-

witnesses and the caution that must be exercised. No formula such as

Turnbull appears to be present, although the same factors are ad-

dressed, as noted in Mthetwa:

It is not enough for the identifying witness to be honest. The reliability

of his observation must also be tested. This depends on various factors

such as lighting, visibility and eyesight; the proximity of the witness; his

opportunity for observation, both as to time and situation; the extent of

his prior knowledge of the accused; the mobility of the scene; corrob-

oration; suggestibility; the accused’s face, voice, gait and dress; the

result of identification parades, if any; and of course, the evidence by or

on behalf of the accused. This list is not exhaustive.114

The extent to which eyewitness evidence has been discussed under

South African law provides extensive judicial reasoning as to when

and how an eyewitness may be accepted as reliable; or more notably,

the circumstances where eyewitness testimony must be rejected. Theapproach taken here is the most extensive of all jurisdictions con-

sidered above, yet uninfluenced by external sources of law. The South

African concept of cogency appears to include many of the Turnbull

factors spread across broad principles of observation, recollection

and narration. As juries no longer exist, the form of words need not

be considered as an issue, however the scope of the cautionary rule is

both wide and rich with suggestions for factors to be taken into

account.

111 S v Webber (1971) (3) SA 754 (A).

112 S v Sauls (1981) (3) SA 172 (A).113 Ibid. at 180E-G, per Dietmont JA.114 S v Mthetwa (1972) (3) SA 766 (A) at 768, per Homes JA.


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III. Analysis and Recommendations

From this examination of the approach taken to eyewitness identifica-tion in various Commonwealth jurisdictions, it is evident that an

awareness of the factors influencing eyewitness identification evid-

ence is required for all cases where identification is disputed. Cer-

tainly the trial judge must be suf ficiently aware of such factors in a

particular case, so as to ensure that the jury is given appropriate

instructions if and when required, thus avoiding any miscarriage of

justice and subsequent retrials. The public prosecutor or the defence

may wish to draw attention to or contest the reliability of an eye-

witness irrespective of whether the presiding judge is required to

issue jury directions.

Despite differences in procedure, the jurisdictions discussed abovehave very similar mechanisms for assessing eyewitness testimony. It

can be seen that, although it is not the oldest of cases, Turnbull has

been influential in the formulation of some judicial warnings across

the Commonwealth. In jurisdictions where Turnbull is not cited, very

similar approaches have been taken, which is inevitable given the

inherent dangers associated with eyewitness testimony.

Within this section, the authors will advocate the adoption of a

mandatory jury direction in all cases involving eyewitness evidence.

This goes beyond the need for a warning when the case is dependent,

wholly or substantially, on such evidence as described in the English

cases Turnbull and Keane. It will be suggested that the Australian

statute (s.116 as written, and not as interpreted by the judiciary) can

form the basis for a universal paradigm to guard against erroneous

eyewitness evidence.

i. Is There a Paradigm?

A mixture of statutory and common law requirements for a judicial

direction can be seen across the selected jurisdictions. The majority

favour a balanced approach in relation to scope by suggesting sig-

nificant factors pertaining to eyewitness reliability in specimen direc-

tions and requiring the judge to include other significant issues raisedduring the trial.

The recommendation for a statutory warning was adopted by

Devlin,115 yet this was not, and has not been enacted in any Com-

monwealth jurisdiction, save Australia and New Zealand. The sugges-

tion in Devlin that weak eyewitness evidence should cease to form the

basis of a prosecution has not been taken up by any jurisdiction, least

of all England and Wales. The paradigm of a distinction easily being

able to be made between ‘good quality eyewitness evidence’ as posed

by Lord Chief Justice Widgery in Turnbull, and identification evidence

at ‘the weaker end of the spectrum’ and dealt with by a warning

115 Above n. 20.

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‘intended primarily to deal with the ghastly risk run in cases of fleet-

ing encounters’,116 is predominant.

A New Zealand Law Commission paper117 presents an in-depth

discussion of the psychological literature applicable to eyewitness re-

search in general and identification evidence in particular. As with

many researchers, the paper divides the factors affecting eyewitness

testimony into three broad categories: event, witness and offender

factors.

The criteria in Turnbull are predominantly event factors such as the

duration of observation, distance, objects obscuring the view, lighting

levels amongst others. Event factors can be seen as applicable to all

cases, irrespective of the type of witness involved in the identification

process. The universal applicability of event factors is also reflected by their presence in the warnings of other jurisdictions.

Witness factors can be further divided into malleable or stable

characteristics.118 Few stable characteristics (such as gender, race,

intelligence or personality) are influential on eyewitness evidence

other than age, which does not feature in any jurisdiction ’s specimen

direction, but may do if the scope of a warning is required to cover

other issues relevant to the case. Malleable characteristics such as

alcohol levels have variable results in the literature. Whether the wit-

ness knows the offender may be seen as a malleable characteristic as

familiarity may increase post event.

Offender factors such as distinctiveness in appearance, or reasonsto remember the person, place or event feature in many judicial speci-

men directions. Studies have shown that changes due to age, hairstyle

and facial hair, disguises or general appearance have a reliable and

significant detrimenta

Documents

An Examination of Criminal Jury Directio