36Direction on identification evidence

36 Direction on identification evidence

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on identification evidence.

(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify the significant matters that may make the evidence unreliable.

(3) In giving a direction referred to in subsection (1), the trial judge must—

(a) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; and

(b) inform the jury of the significant matters that the trial judge considers may make the evidence unreliable; and

(c) inform the jury that—

(i) a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and

(ii) the mistaken evidence of a witness may be convincing; and

(d) if relevant, inform the jury that a number of witnesses may all be mistaken; and

(e) if relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.