Police recognition evidence from CCTV footage is admissible under the Smith v The Queen framework where the accused's appearance has changed between the offence and trial, there is no proximate photograph of the accused, or the existence of a twin or lookalike means the finder of fact cannot resolve identity by observation alone. Section 78 of the Evidence Act 2011 (ACT) permits lay opinion evidence of recognition where the opinion is based on a mental comparison between a remembered impression of a person's appearance and images, and the 'matter or event' in s 78(a) need not be a fact in issue at trial. The danger of unfair prejudice under s 137 is reduced in judge-alone proceedings.
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