Weak resemblance evidence is admissible under s 137 of the Evidence Act 1995 (NSW) and is not excluded merely because it falls short of positive identification, particularly where there is other circumstantial evidence. However, trial judges must not direct juries that circumstantial evidence can support 'the correctness' of flawed identification evidence — the distinction is between bolstering the Crown case as a whole and bolstering the quality of the identification evidence itself. A misdirection conflating these concepts may not amount to a miscarriage of justice where the two components of the evidence were otherwise clearly distinguished for the jury.
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