Similarity identification evidence (where a witness describes the accused as 'pretty similar' or 'very similar' to the offender, falling short of positive identification) is admissible as visual identification evidence under the Evidence Act 1995 (NSW), subject to appropriate warnings under s 116 and the s 137 balancing test. The failure of trial counsel to object to particular evidence or seek particular directions will not constitute incompetent representation within R v Birks unless it amounts to flagrant incompetence causing a miscarriage of justice. A sentencing judge is entitled to find intent to kill on the evidence notwithstanding that the Crown Prosecutor addressed the jury on the lesser basis of intent to inflict grievous bodily harm.
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