Section 113 of the Evidence Act 1995 governs application of part. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Part 3.9 applies only in criminal proceedings under section 113. Accordingly, early identification of the section, clear objection or tender, and focused submissions remain essential.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this Part applies only in a criminal proceeding. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 113 is illustrated in Law v Wollondilly Shire Council [2013] NSWADT 203 at [94]. part 3.9 identification provisions apply only in criminal proceedings, not civil or administrative contexts. The reasoning shows how the section is applied to the facts, submissions and procedural context of the particular case.
A further example is Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290; 82 NSWLR 215; 217 A Crim R 555 at [17], where the Court applied section 113 in context. Part 3.9 applies in criminal proceedings where identification evidence is adduced by the prosecutor against an accused. The reasoning also shows how appellate courts review section 113 rulings for consistency with the Act.
Practical takeaway:
Part 3.9 applies only in criminal proceedings under section 113
Identification evidence in civil proceedings is governed outside Part 3.9
Sections 114–116 operate within the Part 3.9 framework
Practitioners must identify whether proposed evidence is identification evidence under Part 3.9
Section 137 may still exclude identification evidence that satisfies Part 3.9
Law v Wollondilly Shire Council [2013] NSWADT 203 at [94]
“It would be possible, with considerable time and effort, to analyse the course of negotiations between Mr and Mrs Law and the Council in order to determine which communications were made in an effort to negotiate their dispute.
However, the real issue is whether the discussion that took place on 1 Decembers 2010 was one to which section 113 of the Evidence Act 1995 applied.
This is so because it is in that conversation that Mr and Mrs Law allege the gist of the Taylor report was revealed to them by Dr Taylor in the presence of Senior Council officers.”
Guiding proposition:
Part 3.9 identification provisions apply only in criminal proceedings, not civil or administrative contexts.
Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290; 82 NSWLR 215; 217 A Crim R 555 at [17]
“One aspect of the definition which has not always received full recognition is the object of the identification evidence, namely the "defendant". It has been held that the definition does not cover identification of third parties: R v Rose [2002] NSWCCA 455; 55 NSWLR 701 at [325] (Smart AJ), and...”
Guiding proposition:
Part 3.9 applies in criminal proceedings where identification evidence is adduced by the prosecutor against an accused.
section 114 — Exclusion of Visual Identification Evidence
Section 114 of the Evidence Act 1995 governs exclusion of visual identification evidence. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 114(2) is mandatory for prosecution visual identification evidence.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where visual identification evidence. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
The application of section 114 is illustrated in Ombelli v The King [2026] NSWCCA 65 at [117]. section 114(2) makes prosecution visual identification evidence inadmissible unless parade, impracticability or refusal conditions are satisfied and the identifier was not intentionally influenced. The reasoning shows how the section is applied to the facts, submissions and procedural context of the particular case.
A further example is Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290; 82 NSWLR 215; 217 A Crim R 555 at [17], where the Court applied section 114 in context. The Court analysed whether visual identification evidence satisfied section 114's parade and influence requirements. The reasoning also shows how appellate courts review section 114 rulings for consistency with the Act.
Practical takeaway:
Section 114(2) is mandatory for prosecution visual identification evidence
Show-ups and street identifications are subject to section 114
Section 114(3)–(6) guide whether holding a parade was reasonable
Non-compliance with section 114(2) renders evidence inadmissible, not merely weak
Assess parade, impracticability and refusal before tendering visual identification
Ombelli v The King [2026] NSWCCA 65 at [117]
“the process by which the intermediary cross-examined the complainant proceeded in such a way as was likely to give rise to an in-court identification of the applicant, which was inadmissible by reason of sections 114 and 115 of the Evidence Act ; the evidence of the OIC which made the link between the person whom the complainant described as her assailant and the applicant was inadmissible hearsay and opinion evidence and ought to have been excluded; the presence of an unidentified person who lived in DM’s house was insufficiently explored, giving rise to a hypothesis consistent with the applicant’s evidence that this other person may have been...”
Guiding proposition:
Section 114(2) makes prosecution visual identification evidence inadmissible unless parade, impracticability or refusal conditions are satisfied and the identifier was not intentionally influenced.
Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290; 82 NSWLR 215; 217 A Crim R 555 at [1]
“BEAZLEY JA: The central question in this matter was the proper construction of the Evidence Act 1995, section 114(2), which makes visual identification evidence inadmissible except in the circumstances prescribed in the section.
In particular, the question in issue was whether the section applied only to in court identification evidence, or whether it also applied to out of court identification evidence.”
Guiding proposition:
The Court analysed whether visual identification evidence satisfied section 114's parade and influence requirements.
section 115 — Exclusion of Evidence of Identification By Pictures
Section 115 of the Evidence Act 1995 governs exclusion of evidence of identification by pictures. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 115 applies in addition to section 114.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where picture identification evidence. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
The application of section 115 is illustrated in Ombelli v The King [2026] NSWCCA 65 at [117]. section 115 applies in addition to section 114 and regulates picture identification evidence adduced by the prosecutor. The reasoning shows how the section is applied to the facts, submissions and procedural context of the particular case.
A further example is CA v The Queen [2019] NSWCCA 166 at [21], where the Court applied section 115 in context. Picture identification evidence must satisfy section 115's custody and procedural requirements before admission. The reasoning also shows how appellate courts review section 115 rulings for consistency with the Act.
Practical takeaway:
Section 115 applies in addition to section 114
Suggestive picture arrays and custody timing can exclude picture identification
Section 115(7) may require jury warnings about post-custody photographs
Assess reliability and procedural compliance before conviction on picture identification
Contradictory picture identification by the defendant may still be admissible under section 115(8)
Ombelli v The King [2026] NSWCCA 65 at [117]
“the process by which the intermediary cross-examined the complainant proceeded in such a way as was likely to give rise to an in-court identification of the applicant, which was inadmissible by reason of sections 114 and 115 of the Evidence Act ; the evidence of the OIC which made the link between the person whom the complainant described as her assailant and the applicant was inadmissible hearsay and opinion evidence and ought to have been excluded; the presence of an unidentified person who lived in DM’s house was insufficiently explored, giving rise to a hypothesis consistent with the applicant’s evidence that this other person may have been...”
Guiding proposition:
Section 115 applies in addition to section 114 and regulates picture identification evidence adduced by the prosecutor.
“Ground 1: His Honour erred in not severing counts 1-20 (the [JF and SF] complaints) from counts 21-35 (the club complaints) in that he: a. Failed to undertake the task set out in Hughes at paragraph [41] b....”
Guiding proposition:
Picture identification evidence must satisfy section 115's custody and procedural requirements before admission.
Section 116 of the Evidence Act 1995 governs directions to jury. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 116 applies whenever identification evidence is admitted.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where if identification evidence has been admitted, the judge is to inform the jury that there is a special need for caution before accepting identification evidence, and or of the reasons for that need for caution, both generally and in the circumstances of the case. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that it is not necessary that a particular form of.
The application of section 116 is illustrated in Ombelli v The King [2026] NSWCCA 65 at [117]. section 116 requires a mandatory cautionary direction whenever identification evidence is admitted. The reasoning shows how the section is applied to the facts, submissions and procedural context of the particular case.
A further example is Marco v The King [2023] NSWCCA 307 at [50], where the Court applied section 116 in context. Failure to give an adequate section 116 direction may constitute a miscarriage of justice where conviction rests on identification evidence. The reasoning also shows how appellate courts review section 116 rulings for consistency with the Act.
Practical takeaway:
Section 116 applies whenever identification evidence is admitted
The direction must explain why caution is required generally and in the case
Failure to give the direction may cause a miscarriage of justice
Compliance with section 114 or 115 does not dispense with section 116
Tailor the direction to observation conditions, delay and procedure in the case
Ombelli v The King [2026] NSWCCA 65 at [141]
“(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 identification 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.”
Guiding proposition:
Section 116 requires a mandatory cautionary direction whenever identification evidence is admitted.
“The trial judge gave the jury a direction about the identification evidence (as required by section 116 of the Evidence Act 1995 ( Evidence Act )).
That direction included an instruction as to the need for special caution before accepting evidence of identification, and the reasons that such evidence might be unreliable (10/11/22; T 25-26).
The trial judge directed the jury that special caution was needed because of the possibility that an honest witness might be mistaken in their identification of a person....”
Guiding proposition:
Failure to give an adequate section 116 direction may constitute a miscarriage of justice where conviction rests on identification evidence.
