(1) Facts necessary to explain or introduce a fact in issue or relevant fact;
(2) Facts which support or rebut an inference suggested by a fact in issue;
(3) Facts which establish the identity of anything or person whose identity is relevant;
(4) Facts which fix the time or place at which any fact in issue or relevant fact happened; and
(5) Facts which show the relation of parties by whom any such fact was transacted.
Visual identification falls under the category of facts which establish the identity of the person whose identity is relevant. Visual identification can be done in two ways, i.e. recognition and identification.
“Recognition” was defined under the Oxford Dictionary as the “identification of a person from previous encounters or knowledge”; meanwhile “identification” was defined as the “action or process of identifying someone”, it is “a means of proving a person’s identity”.
There is a distinction between recognition and identification in which recognition is more reliable than mere identification. Where the complainant had recognized the accused, then it would constitute good evidence of identification.
Where an accused disputes identification, the prosecution will be put to proof that the accused is, beyond all reasonable doubt, the person who committed the offence. Visual identification by the eyewitness as to the identity of the accused is an admissible evidence in order to establish the prosecution’s case.
In the case of visual identification of the accused by one or more witnesses, it is useful to bear in mind the guidelines laid down in the case of R v. Turnbull which have been consistently applied in England and in a number of Commonwealth countries.
The guidelines in R v. Turnbull applies where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, it is imperative for the judge to warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The judge should direct the jury to examine closely the circumstances in which the identification by each witness can be made. Some of these circumstances may include:
- Amount of time the suspect was under observation by the witness. If it was only a fleeting glance as opposed to a few minutes, a judge is likely to be more skeptical of the evidence.
- Distance between the suspect and the witness; if there was a great distance between the eyewitness and the suspect or the crime scene, less weight is likely to be given.
- Visibility at the time the witness saw the suspect. The time of day and thus the level of darkness is of importance. If the sighting was at 3am in pitch darkness, there is likely to be more doubt over an accurate identification.
- Obstructions between the suspect and the witness. The court will take into account the general conditions that may have affected the sighting, for instance, whether it was an extremely foggy day, or the sighting took place in a crowded area, or there was a large obstacle obstructing the view.
- Knows the suspect or has seen him or her before. Here, the principle of recognition comes into play. Recognition bear a higher probative value than mere identification.
- Any particular reason for the witness to remember the suspect. It has to be taken into consideration whether the witness actually sees the face of the accused. Often a witness may only see the back of the accused in which case it will be easier for the accused to deny that it was actually him.
- Time lapse since the witness saw the suspect. The longer the time lapse, the lower probative value attached to the witness statement.
- Error or material discrepancy in the description given by the witness. The court will observe on how close the description given by the witness to the police actually matched the description of the accused.
The guidelines in R v. Turnbull was referred to, approved or applied by the Malaysian Court in the case of Dato’ Mokhtar Hashim v. PP; Yau Heng Fong v. PP; Rangapula v. PP; PP v. Chan Choon Keong etc., in which the court in PP v. Chan Choon Keong held that: “in dealing with evidence of visual identification, the court has to remind itself of the special need for caution before convicting the accused in reliance on the correctness of the identification.”
Failure to direct such warning may result in the conviction being quashed as was held in the case of Ja’afar bin Ali v. PP. The court held that: “where evidence of identification represents any significant part of the proof of guilt in an offence, the judge must warn the jury of the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula, but it must be cogent and effective and must be appropriate to the circumstances of the particular case. The failure to warn of the dangers of identification evidence may lead to the ordering of new trials and the quashing of convictions”.
In conclusion, the guidelines in R v. Turnbull is a requirement necessary as a matter of law where the case against the accused depended wholly or substantially on the correctness of one or more identifications of the accused, which is alleged by the defence counsel to be mistaken identification. The guidelines aimed at assessing the quality of the identification in which the court in R v. Turnbull said:
"In our judgement when the quality is good as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the Jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it".
"When in the judgement of the Trial Judge, the quality of the identifying evidence is poor as for example when it depends solely on a fleeting glance, or on a longer observation made in difficult conditions, the situation is very different. The Judge should then withdraw the case from the Jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification".
The circumstances in which the identification by each witness came to be made needs to be examined. A failure to follow the guidelines is likely to result in the conviction of the accused being quashed by a superior court, and an order for retrial of the case as the omission would occasion a failure of justice.
Prepared by: TAN SHOO MAY A 130299