LAW 3502 - Evidence and Advocacy

North Terrace Campus - Semester 2 - 2019

Evidence & Advocacy is the study of "proof"; particularly, what is proof in legal proceedings and how do we prove matters as fact. Through problem solving and practical/interactive role plays, students will critically analyse the laws of evidence applicable to the proof of facts in South Australian and Australian Federal courts. These laws determine the evidence which will be received by courts to establish material facts, the form in which such evidence must be presented and the uses to which such evidence can be put by the court. Laws applicable to civil and criminal proceedings are examined with a concentration on the evidential constrictions applicable to criminal proceedings. In this context, criminal procedure is itself examined, particularly police investigative process and prosecution and defence obligations prior to and at trial. The Course relies on an interdisciplinary framework of study for students to actively ascertain the techniques, limitations and requirements for eliciting, challenging and scrutinising evidence for the purpose of considering whether it amounts to proof. Students will gain an understanding and appreciation for the neuro-psychology, physiological, forensic and mathematical disciplines which inform and shape proof in law.

  • General Course Information
    Course Details
    Course Code LAW 3502
    Course Evidence and Advocacy
    Coordinating Unit Adelaide Law School
    Term Semester 2
    Level Undergraduate Law (LLB)
    Location/s North Terrace Campus
    Units 6
    Contact Up to 6 hours per week
    Available for Study Abroad and Exchange Y
    Prerequisites LAW 3501,LAW 2503 or LAW 2599, LAW 2504, LAW2505 or LAW2598
    Incompatible LAW 3003 & LAW 3007
    Assumed Knowledge LAW 2504,LAW 2505 or LAW 2598
    Restrictions Available to LLB students only
    Course Description Evidence & Advocacy is the study of "proof"; particularly, what is proof in legal proceedings and how do we prove matters as fact. Through problem solving and practical/interactive role plays, students will critically analyse the laws of evidence applicable to the proof of facts in South Australian and Australian Federal courts. These laws determine the evidence which will be received by courts to establish material facts, the form in which such evidence must be presented and the uses to which such evidence can be put by the court.
    Laws applicable to civil and criminal proceedings are examined with a concentration on the evidential constrictions applicable to criminal proceedings. In this context, criminal procedure is itself examined, particularly police investigative process and prosecution and defence obligations prior to and at trial.
    The Course relies on an interdisciplinary framework of study for students to actively ascertain the techniques, limitations and requirements for eliciting, challenging and scrutinising evidence for the purpose of considering whether it amounts to proof. Students will gain an understanding and appreciation for the neuro-psychology, physiological, forensic and mathematical disciplines which inform and shape proof in law.
    Course Staff

    Course Coordinator: Mr David Caruso

    The Course is Coordinated by David Caruso.
    Email: david.caruso@adelaide.edu.au
    Phone: 8313 5501
    Office 212, Ligertwood Building
    Contact information for other staff in the course will be made available on MyUni.
    Course Timetable

    The full timetable of all activities for this course can be accessed from Course Planner.

  • Learning Outcomes
    Course Learning Outcomes

    The Legal Practitioners' Education and Admissions Council (LPEAC) sets rules for the academic requirements for admission to legal practice in South Australia. Students must demonstrate a satisfactory level of understanding and application of 11 core areas of legal knowledge.
    This course covers material in the Priestley 11 subjects: “Evidence”, “Criminal Law and Procedure” and “Ethics and Professional Responsibility”. In particular, it covers the following Priestley 11 topics:

    EVIDENCE
    - introduction
    - competence and compellability
    - privilege
    - the examination of witnesses
    - disposition and character
    - similar fact evidence
    - the accused as a witness
    - burden and standard of proof
    - documentary evidence
    - opinion evidence and prior determination
    - hearsay, the exclusionary rule and the common law and statutory exceptions
    - admissions and confessions in criminal cases
    - illegally obtained evidence and confirmation by subsequent fact
    - res gestae
    - corroboration

    CRIMINAL LAW AND PROCEDURE
    - elements of criminal procedure
    - classification of offences
    - process to compel appearance
    - preliminary examination
    - trial of indictable offences

    ETHICS AND PROFESSIONAL RESPONSIBILITY
    Professional and personal conduct in respect of a practitioner's duty:
    - to the law
    - to the Courts
    - to clients, including a basic knowledge of the principles relating to the holding of money on trust
    - to fellow practitioners

    On successful completion of this course, students will be able to:

    1. Critically analyse and evaluate the process of proving facts within the common law court system. Undertake legal research at an advanced level, and evaluate and apply a diverse range of legal information to complex evidential problems.
    2. Apply evidence rules in a principled and critical manner as appropriate in South Australian and Federal courts.
    3. Structure and sustain effective written and oral arguments for a legal audience. Complete complex tasks as a member of a team.
    4. Exercise sound professional judgement in the application of trial and appellate litigation techniques and practice. Work in a team in a professional and ethical manner.
    5. Compare and contrast the ethical roles of lawyers within South Australian and Federal courts.
    6. Demonstrate advanced capacity to use feedback to inform personal and professional development. Utilise critical self-evaluation to drive improvement.
    University Graduate Attributes

    This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:

    University Graduate Attribute Course Learning Outcome(s)
    Deep discipline knowledge
    • informed and infused by cutting edge research, scaffolded throughout their program of studies
    • acquired from personal interaction with research active educators, from year 1
    • accredited or validated against national or international standards (for relevant programs)
    1
    Critical thinking and problem solving
    • steeped in research methods and rigor
    • based on empirical evidence and the scientific approach to knowledge development
    • demonstrated through appropriate and relevant assessment
    2
    Teamwork and communication skills
    • developed from, with, and via the SGDE
    • honed through assessment and practice throughout the program of studies
    • encouraged and valued in all aspects of learning
    3
    Career and leadership readiness
    • technology savvy
    • professional and, where relevant, fully accredited
    • forward thinking and well informed
    • tested and validated by work based experiences
    4
    Intercultural and ethical competency
    • adept at operating in other cultures
    • comfortable with different nationalities and social contexts
    • Able to determine and contribute to desirable social outcomes
    • demonstrated by study abroad or with an understanding of indigenous knowledges
    5
    Self-awareness and emotional intelligence
    • a capacity for self-reflection and a willingness to engage in self-appraisal
    • open to objective and constructive feedback from supervisors and peers
    • able to negotiate difficult social situations, defuse conflict and engage positively in purposeful debate
    6
  • Learning Resources
    Required Resources
    REQUIRED RESOURCES

    Lectures, seminar guides, and some more recent cases will be available on MyUni and/or in hard copy from the ICC. Other cases referred to can be accessed most simply through the law reports in the Law Library or electronically via the law library’s legal databases.The case file and seminar guides for the advocacy exercises will be available on MyUni as required and/ or in hard copy from ICC.

    PRESCRIBED TEXTS

    1. Gray, Hinton and Caruso, Essays in Advocacy, 2012
    2. Caruso et al, South Australian Criminal Law & Procedure, 2nd ed, 2016

    Copies of these books will be available on reserve in the law library for students who do not wish to purchase a copy.

    PRESCRIBED LEGISLATION

    1. Evidence Act 1929 (SA)
    2. Evidence Act 1995 (Cth)

    The approved Law School style guide: The Australian Guide to Legal Citation (3rd ed, 2010) (available electronically at http://mulr.law.unimelb.edu.au/go/aglc and in hard copy in the Law Library and for purchase at Unibooks).
    Recommended Resources
    PRIMARY REFERENCE:

    Ligertwood, Andrew and Edmond, Gary, Australian Evidence, 6th ed, LexisNexis Butterworths, 2017

    Copies of this book are available on reserve in the law library for students who do not wish to purchase a copy.

    OTHER REFERENCES:
    There are a large number of texts which consider Australian Evidence Law. If you are having difficulty with any of the concepts covered in this course, and would like to see how they are discussed in an alternative text, you might wish to consider one of the excellent resources listed below.

    On the laws of evidence:
    1. Heydon, Cross on Evidence, LexisNexis Butterworths, Looseleaf and Online.
    2. Odgers, Uniform Evidence Law, 13th ed, Thomson Reuters, 2018.

    On techniques of advocacy:
    1. Wells, Evidence and Advocacy, Butterworths, 1988
    2. Glissan, Advocacy in Practice, 4th ed, Butterworths, 2005
    3. Selby, Winning Advocacy, 2nd ed, Oxford University Press, 2004
    4. Mauet and McCrimmon, Fundamentals of Trial Technique, 3rd ed, 2011
    Online Learning
    The Course Syllabus is available online and lecture content is made available via Echo 360. Students may engage in peer to peer learning through the online Discussion Board which is moderated by the Course Coordinator.
  • Learning & Teaching Activities
    Learning & Teaching Modes
    The course will be taught through lectures supported by interactive problem-solving workshops, seminars and practical exercises developing primary material, as well as independent study/preparation seminars.
    Workload

    The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

    Students are expected to attend lectures, seminars and workshops each week.

    The University expects full-time students (ie those taking 12 units per semester) to devote a total of 48 hours per week to their studies during semester. This means that in addition to lectures and seminars, students should spend time in private study in the course across the semester – this includes reading the material, preparing for lectures and seminars and undertaking the assessment tasks, individually or in assigned practice groups.
    Learning Activities Summary
    Students will be required to closely engage with the modules in Evidence and Advocacy which, together, inform the lectures, workshops, seminars and advocacy exercises of the Course.
    The Modules cover the following topics
    1 Basic Concepts - Relvance & Probity
    2 Party Presentation
    3 Evidence in Chief (XN)
    4 Cross-Examination (XXN)
    5 Documentary & Real Evidence
    6 Opinion & Expert Evidence
    7 Original & Hearsay Use
    8 Hearsay Exceptions
    9 Criminal Procedure, Police Investigation
    10 Criminal Procedure, Party Positions & Obligations
    11 Criminal Procedure, Court Processes
    12 Confessional Evidence and Discretionary Exclusion
    13 Character 1 - Dispositional & Non-Dispositional Use
    14 Character 2 - the Shield of the Accused
    15 Warnings, Directions and Unreliable Evidence Safeguards
    Specific Course Requirements
    There are no additional requirements for completion of this course other than described elsewhere in this document.
    Small Group Discovery Experience
    There are three significant small group discovery experiences in Evidence and Advocacy, although the subject is always rich with
    experiential student discovery and learning as a final year, often final, Law subject.

    First, through small groups in the compulsory seminar series each student will discover their role as a legal professional by working collaboratively within a group, ethically and practically, to identify, argue and resolve evidential and proof issues. In this process, with the assistance of highly experienced legal practitioners and academics as seminar leaders, each student will understand their role within the legal profession and the due administration of justice.

    Second, through the compulsory advocacy practical exercises each student will discover and experience the roles of the advocate, instructing solicitor and witness within the court process. The student will learn that the challenges faced by the advocate are many and complex. In doing so, the student will discover that the advocate “serves the private ends of those who seek legal
    services and at the same time the public end of maintaining the rule of law.” (The Hon Justice Robert French AC, Chief Justice of the High Court of Australia, in Gray, Hinton and Caruso, Essays in Advocacy, University of Adelaide Press, 2012, 3.) With the assistance and constructive feedback of highly experienced judges, the advocate will develop her or his own style or voice and discover her or his own abilities by the application of high level oral and written skills and by engaging in an educated and professional discourse with the bench and witnesses.

    Third, through compulsory evidence debates during Friday workshops, each student will actively prepare and contribute to the presentation of an argument in respect of an assigned evidence question, informed by critical review of issued case law or secondary
    source literature. The debates will further develop a student's teamworkand communication skills within group work to present a reasoned and persuasive argument. In addition to peer to peer discovery, this exercise will provide each small group a mentoring session with an expert legal professional to seek guidance on the group's preparation and arguments ahead of their debate presentation.
  • Assessment

    The University's policy on Assessment for Coursework Programs is based on the following four principles:

    1. Assessment must encourage and reinforce learning.
    2. Assessment must enable robust and fair judgements about student performance.
    3. Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
    4. Assessment must maintain academic standards.

    Assessment Summary
    Assessment Task % of final marks Due dates Task Type
    Redeemable Learning Outcomes
    Advocacy Exercise on examination and cross-examination of witnesses in a mock case and Written Justification 25% Exercises undertaken at various dates during semester. Further information to be provided on MyUni. Individual No 1-6
    Evidence Debate on principles and policy of the justice system 20% Exercises undertaken at assigned Friday workshops. Further information to be provided on MyUni Group No 1-6
    Examination 55% Exam period Individual No 1-2, 5-6
    Assessment Detail

    1. Advocacy Exercises: Witness Examination and Cross-Examination and Written Justification

    Each student must complete an advocacy exercise during the semester concerning the oral examination and cross-examination of witnesses. Together with this oral exercise, the student must submit a written justification for the strategy and approach taken to the examination and cross-examination. The written justification is due on the date of the advocacy exercise. The written justification is to be a maximum of 1000 words.

    DUE DATE: The advocacy exercises and accompanying written justification are due at various dates during semester. Further information about these exercises will be provided on MyUni.

    2. Evidence Debates

    Each student must participate in a group debate on an assigned question which requires critical analysis of assigned reading materials. This is an oral assessment; there is no written component to be submitted.

    DUE DATE: The debates are held during the Friday workshops. In the Friday workshop of Week 1, groups will be assigned. The requisite materials for each debate will be isssued through MyUni. Further information about these exercises will be provided on MyUni.

    3. Examination

    To be held during the examination period. The exam will be 3 hours in duration (not including reading time).

    Submission
    Assignments must be handed in electronically by Turnitin. Students must ensure their student number appears on all written work submitted for assessment.

    Electronic copies of the assignment as handed in must be retained by students.

    Assignments will be returned electronically.

    It is also advisable to keep written work after it has been assessed and returned.

    Late submission penalty – assignments submitted after the due time and date without an extension granted by the Course Coordinator will be subject to a penalty of 5% of the total mark possible will be deducted for every 24 hours or part thereof that it is late, including each day on a weekend. For example, an essay that is submitted after the due date and time but within the first 24 hour period, and that has been graded at 63%, will have 5% deducted, for a final grade of 58%. An essay that is more than 24 hours late will lose 10%, etc. Hard copy submissions made after 5.00pm on a Friday will be assumed to have been submitted on the next business day and will be penalised accordingly. Extensions on medical or compassionate grounds will be in accordance with University Policy (see below).

    Word length penalty - assignments which exceed the allocated length (word length or page limit) will be subject to a penalty of 5% of total marks available per page or per 100 words or part thereof (eg. an essay with a 3000 word limit which is graded 63% will have 5% deducted if it is 3020 words in length, for a final grade of 58% and will have 10% if it is 3120 words in length, for a final grade of 53% etc). Words are calculated including all footnotes and headings within the text but excluding cover page information. Quotations and all referencing information are included in the word count.

    All written work in the Law School is required to comply with the approved Law School style guide, The Australian Guide to Legal Citation (see 3.1 above under References).

    The quality of English expression is considered to be an integral part of the assessment process. Marks may be deducted from assessment because of poor expression, incorrect grammar, typographical errors etc. Unless instructed otherwise, please submit assignments on A4 size paper, double spaced and with a margin of at least 2.5 cm. Assessment work that is not submitted in this form may not be accepted, or may contain no assessment comments.

    Assignments will be released to students within 3 weeks of the due date with written feedback.
    Course Grading

    Grades for your performance in this course will be awarded in accordance with the following scheme:

    M10 (Coursework Mark Scheme)
    Grade Mark Description
    FNS   Fail No Submission
    F 1-49 Fail
    P 50-64 Pass
    C 65-74 Credit
    D 75-84 Distinction
    HD 85-100 High Distinction
    CN   Continuing
    NFE   No Formal Examination
    RP   Result Pending

    Further details of the grades/results can be obtained from Examinations.

    Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.

    Courses for which a result of conceded pass has been obtained may not be presented towards the degree requirements for the Bachelor of Laws or the Honours Degree of Bachelor of Laws programs, or any postgraduate law program, nor to satisfy prerequisite requirements within any law course.

    Final results for this course will be made available through Access Adelaide.

    Finality of Assessment Grades

    Students are advised that Course Coordinators will not enter into negotiations of any kind with any student regarding changes to their grades. It is irrelevant, in any given circumstance, that only a minimal number of additional marks are required to inflate a student’s grade for any individual assessment item or course as a whole. Pursuant to the University’s Assessment for Coursework Programs Policyand the Adelaide Law School Assessment Policies and Procedures, grades may only be varied through the appropriate channels for academic review (such as an official re-mark).

    Moderation
    In accordance with the University’s Assessment for Coursework Programs Policy, course coordinators ‘ensure that appropriate marking guidelines and cross-marking moderation processes across markers are in place’ in each course. Procedures adopted by Adelaide Law School to ensure consistency of marking in courses with multiple markers include:
    • assurance of the qualifications of markers, and their knowledge of the content covered in each course;
    • detailed marking guidelines and assessment rubrics to assist in the marking of items of assessment;
    • sharing of example marked assessments at various grade bands across markers;
    • reviewing of selected marked assessments from each marker by the course coordinator;
    • comparison of the marks and their distribution across markers;
    • automatic double-marking of all interim assessment receiving a fail grade, and of final assessments where a student’s overall result is a fail grade;
    • the availability of re-marking of assessments in accordance with Adelaide Law School’s Assessment Policies and Procedures.

    Approval of Results by Board of Examiners
    Students are reminded that all assessment results are subject to approval (and possible moderation/change) by the Law School’s Board of Examiners. Assessment results at the University are not scaled. Under the Assessment for Coursework Programs Policy, students are assessed ‘by reference to their performance against pre-determined criteria and standards … and not by ranking against the performance of the student cohort in the course’. However, under that same policy, the Board of Examiners (as the relevant Assessment Review Committee for courses at Adelaide Law School) is required to ‘ensure comparability of standards and consistency’ in assessment. On occasions, the Board of Examiners will form the view that some moderation is required to ensure the comparability of standards and consistency across courses and years, and accordingly provide fairness to all law students. All assessment results are therefore subject to approval (and possible change) until confirmed by the Board of Examiners and posted on Access Adelaide at the end of each semester.
  • Student Feedback

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.

  • Student Support
    The University Writing Centre provides academic learning and language development services and resources for local, international, undergraduate and postgraduate coursework students enrolled at the University of Adelaide.

    The centre offers practical advice and strategies for students to master reading, writing, note-taking, time management, oral presentation skills, referencing techniques and exam preparation for success at university through seminars, workshops and individual consultations.

    Lex Salus Program
    Lex Salus (law and wellbeing) is an initiative of the Adelaide Law School aimed at destigmatising mental health issues; promoting physical, mental and emotional wellness; building a strong community of staff and students; and celebrating diversity within the school. It also seeks to promote wellness within the legal profession, through the involvement of the Chief Justice of the Supreme Court of South Australia, the Honourable Chris Kourakis, as the official Patron of the program.

    Students can participate in the Lex Salus program by attending barbecue lunches, pancake breakfasts, knitting and crochet circles, seminars, guest speakers, conferences and other activities. Our Facebook page, website and regular all-student emails promote upcoming events, and have tips and information on wellness.

    Our Lex Salus YouTube channel also includes videos on topics like managing stress, and interviews with LGBTQ lawyers and their supporters which celebrate diversity and individuality. Students who commit to 10 hours of volunteering with Lex Salus in one year can have their service recognised on their academic transcript and through a thank you morning tea with the Chief Justice and law school staff.

    Student Life Counselling Support
    The University’s Student Life Counselling Support service provides free and confidential service to all enrolled students. We encourage you to contact the Student Life Counselling Support service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life.
  • Policies & Guidelines

    This section contains links to relevant assessment-related policies and guidelines - all university policies.

    Academic Honesty
    Academic dishonesty is a serious act of academic misconduct. All students must be familiar with the University’s Academic Honesty Policy.

    Academic dishonesty is a serious matter and is treated as such by the Law School and the University. Academic dishonesty (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to admit a person to practice as a legal practitioner in South Australia.

    Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.
  • Fraud Awareness

    Students are reminded that in order to maintain the academic integrity of all programs and courses, the university has a zero-tolerance approach to students offering money or significant value goods or services to any staff member who is involved in their teaching or assessment. Students offering lecturers or tutors or professional staff anything more than a small token of appreciation is totally unacceptable, in any circumstances. Staff members are obliged to report all such incidents to their supervisor/manager, who will refer them for action under the university's student’s disciplinary procedures.

The University of Adelaide is committed to regular reviews of the courses and programs it offers to students. The University of Adelaide therefore reserves the right to discontinue or vary programs and courses without notice. Please read the important information contained in the disclaimer.