Month: April 2022

Background:

Judges are required to give a Domican warning to the jury (or to themselves in a trial by judge alone) in many trials where identification evidence is admitted as part of the prosecution case and its reliability is disputed. Domican warnings are given because courts have special knowledge that miscarriages of justice have occurred because of evidence from honest and convincing, but mistaken, witnesses who may incorrectly identify a person or their characteristics as matching the offender.

Domican warnings need to be given in any case involving a positive identification, and may need to be given in cases involving circumstantial resemblance identification evidence (where identification evidence forms a significant part of the proof of guilt).

But what about in cases where the evidence identifying an accused person is properly characterised as ‘recognition evidence’ rather than ‘identification evidence’? That is, evidence from ‘a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene’ (see Mills v The State of Western Australia [2008] WASCA 219, [73] per Buss JA).

In ISN v The State of Western Australia (No 2) [2021] WASCA 112, the Court of Appeal considered whether recognition evidence required a Domican warning.

ISN v The State of Western Australia (No 2) [2021] WASCA 112:

In the District Court, the appellant was tried by jury and subsequently convicted of four sexual offences against a child under the age of 13 years (called ‘T’). At trial, the defence argued that T was mistaken in thinking that ISN was the person who abused her. T’s evidence identifying ISN was properly classed as recognition evidence because T had known ISN her entire life, in circumstances where ISN was a frequent visitor to her family home and often stayed over on weekends, when ISN and T’s father would drink alcohol.

On appeal, it was argued that the trial judge was obliged to, but did not, ‘give a comprehensive Domican warning’ (at [92]). The Court of Appeal first considered whether Domican warnings ordinarily need to be given in cases of recognition, before turning to the specific question of whether a Domican warning needed to be given in this case.

Do recognition cases ordinarily require a Domican warning? In short, the Court of Appeal concluded that Domican directions are not usually required for recognition evidence, but there are exceptions. As put by the Court of Appeal:

‘A Domican warning… is not mandated for cases involving recognition. This is because, generally speaking, recognition evidence is more reliable than a stranger’s evidence of identification. Nevertheless, ordinarily in cases involving recognition, a jury is reminded that mistakes in recognition, even of close relatives or friends, are sometimes made… However, there will be recognition cases which, having regard to the particular circumstances, involve just as much danger of mistaken identification as cases involving the identification of a stranger. In these cases, a Domican warning is required.’ (at [96]–[97])

Did T’s evidence require a Domican warning? Ultimately the Court of Appeal found that it may have been preferable for the trial judge to have given a more comprehensive and specific warning about the reliability of T’s evidence. However, having regard to the nature of the trial and the directions which were given, the trial judge did not err (at [103]).

The trial judge had given a Longman direction and provided general warnings about the fallibility of human memory and the possibility of mistaken recollection (at [101]). Further, there was no prospect that the jury would not have considered the possibility that T was mistaken in her recognition of ISN as the offender:

‘As the element of identity was the only element in issue in the case, it is inconceivable that the jury would not have had regard to the possibility that T was honestly mistaken in her evidence of recognition. The jury was made aware of the experience of judges and lawyers that mistakes can happen and that innocent people can be convicted as a result of mistaken recognition evidence.’ (at [100])

Accordingly, the ground of appeal was not successful. The appeal was ultimately dismissed (as the other grounds of appeal were also not made out).

The judgment:

The judgment was delivered last year (but I’ve only now gotten around to writing about it as I taught identification and recognition just last week in my Evidence law course). The judgment can be accessed here.