LAW 3502 - Evidence and Proof in Theory and Practice

North Terrace Campus - Semester 2 - 2016

Through problem solving and practical role plays students will critically analyse the rules of evidence applicable to the proof of facts in South Australian and Federal courts. These rules determine the evidence which will be received by courts in proof of facts, the form in which such evidence must be presented, and the uses to which such evidence can be put. Topics include examination of both the sources and acceptability of evidence, including rules concerning the standards and burdens of proof and technical rules concerning such matters as hearsay, admissions and confessions and res gestae. Advocacy exercises will introduce students to the unique adversarial nature of the common law oral evidentiary process and emphasise the lawyer's role and ethical place in that process.

  • General Course Information
    Course Details
    Course Code LAW 3502
    Course Evidence and Proof in Theory and Practice
    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 and LAW 2503
    Incompatible LAW 3003 & LAW 3007
    Restrictions Available to LLB students only
    Course Description Through problem solving and practical role plays students will critically analyse the rules of evidence applicable to the proof of facts in South Australian and Federal courts. These rules determine the evidence which will be received by courts in proof of facts, the form in which such evidence must be presented, and the uses to which such evidence can be put.
    Topics include examination of both the sources and acceptability of evidence, including rules concerning the standards and burdens of proof and technical rules concerning such matters as hearsay, admissions and confessions and
    res gestae. Advocacy exercises will introduce students to the unique adversarial nature of the common law oral evidentiary process and emphasise the lawyer's role and ethical place in that process.
    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 subject “Evidence”. In particular, it covers the following Priestley 11 topics:
    · Introduction.
    · Competence and compellability.
    · The accused’s privilege against self-incrimination.
    · 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.
     
    Students will develop the following skills:
    1. an understanding of the process of proving facts within the common law court system.
    2. a principled and critical understanding of the application of evidential rules in South Australian and Federal courts.
    3. a critical and practical appreciation of the ethical roles of lawyers within that system.
    4. a practical understanding of trial processes.
    5. proficiency in legal research techniques.

    . Students will develop the following skills:
    . Critical thinking and problem solving skills.
    . Cognitive skills to analyse, evaluate and synthesise information from a wide variety of sources to identify and address as appropriate   evidential issues.
    . Skills to work both independently and cooperatively in a professional environment.
    . The capacity to work in a professional and ethical relationship with both clients and colleagues.
    . Oral and written communication skills of a high order.
    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)
    1-3, 5
    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
    1-5
    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
    1-4
    Career and leadership readiness
    • technology savvy
    • professional and, where relevant, fully accredited
    • forward thinking and well informed
    • tested and validated by work based experiences
    1-5
    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
    2-4
    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
    1-5
  • Learning Resources
    Required Resources
    Lectures, workshop, seminar and practical exercise 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.
    Recommended Resources
    TEXT BOOKS
    1. Ligertwood, Andrew and Edmond, Gary, Australian Evidence, 5th edition, LexisNexis Butterworths, 2010
    2. Mauet and MacCrimmon, Fundamentals of Trial Techniques, 3rd edition, Thomson Reuters, 2011
    3. Gray, Hinton and Caruso, Essays in Advocacy, 1st Ed, 2012.

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

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

    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, 11th edition, Thomson Reuters, 2014.

    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

    The approved Law School style guide The Australian Guide to Legal Citation (3rd ed, 2010) (available electronically athttp://mulr.law.unimelb.edu.au/go/aglc and in hard copy in the Law Library and for purchase at Unibooks)
  • 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 will be expected to attend lectures and seminars each week, in accordance with the Course Planner and other issued Lecture and Seminar schedules as issued in the Course.

    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 12 aligned modules of the Evidence and Litigation Thematics which, together, inform the lectures, workshops, seminars and practical exercises of the Course.

    The 12 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) Confessional Evidence and Discretionary Exclusion
    10) Character 1 - Dispositional & Non-Dispositional Use
    11) Character 2 - the Shield of the Accused
    12) 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 two significant small group discovery experiences in Evidence and Proof in Theory and Practice, 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.
  • 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 Item % of final marks Due dates Group or individual assessment Redeemable Learning Objectives
    Attendance and satisfactory participation at seminars Pass/Fail Individual No 1-10
    Written research assignment on evidence 20% Monday, mid-semester break by 2pm Individual No 1-10
    Two advocacy based Practical Eexercises across the duration of the semester including oral and written components 30% Exercises undertaken at various dates during semester. Further information to be provided on MyUni. Individual No 1-10
    Examination 50% Exam period Individual No 1-10
    Students who miss more than THREE (3) seminars during the course of the semester will be unable to pass the course, without the approval of the Course Coordinator.

    Attendance and satisfactory participation in seminars is compulsory. Students who do not meet these requirements will not be eligible to take the exam, without approval of the Course Coordinator. Responsibility for monitoring attendance and participation is that of the student and will be recorded by staff of the Course.
    Assessment Detail

    1. Attendance and satisfactory participation at seminars (Pass/fail)

    See further information provided below. 

    2. Written Research Assignment on Evidence (20%)

    Individually assessed written assignment. Due: Monday, mid-semester break by 2pm. Assignment instructions for the advice on evidence will be posted on MyUni.

    3. Advocacy Practical Exercises (30%)

    Each student must complete two advocacy exercises during the semester including oral and written components. Each of these exercises will be marked and each will be worth 15% of the student’s final grade.

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

    4. Examination (50%)

    To be held during the examination period. The exam will be a minimum of 3 hours in duration.

    Attendance and satisfactory participation at seminars

    Students who miss more than THREE (3) seminars during the course of the semester will be unable to pass the course, without the approval of the Course Coordinator.

    Students may complete make-up work for seminars missed for compassionate or medical reasons at the discretion of seminar leaders. The precise nature of this make-up work will depend on the seminar missed and will be negotiated with the seminar leader.

    This subject prepares students for legal practice in South Australia and elsewhere in Australia and is a prerequisite for admission to the Bar in SA. It is designed to introduce students to the theory and practice of evidential rules and ethical principles. These will be further studied at postgraduate level prior to admission as a legal practitioner. Skills such as critical evaluation, exercising legal and forensic judgment, appreciation of the operation of judicial discretion, and the capacity to communicate legal argument clearly and effectively are critical to legal practice in this area.

    The appreciation of legal ethical principles is also an important graduate attribute. Whilst legal ethics are couched in absolute terms, in practical application, there is considerable subjectivity at play. Seminars in this subject make regular reference to ethical dilemmas, and draw on students to engage in evaluation and resolution of such dilemmas by reference to given principles, and legal and social outcomes. The practice of law requires lawyers to be able to identify and resolve such issues, and this is almost always only achievable by consultation with peers and other professionals. Including such issues in seminars, and assessing students’ capacity to approach them in a professional and effective manner, is a necessary aspect of teaching future legal professionals, and is best achieved by direct observation and participation in class. The seminars are predicated on the assumption that students have undertaken given preparation, and approach the subject matter at a relatively sophisticated level based on this preparation. Individual or small groups of students will often be asked to prepare issues for discussion, to undertake small research exercises, or to otherwise contribute to future seminars. Activities of this nature are an essential part of being an effective professional in the legal field. Small class sizes (24) and a strong focus on interactive learning make methodology such as this an effective way of developing students’ strategic and forensic thinking skills.

    For these reasons attendance and satisfactory participation in seminars is compulsory. Students who do not meet these requirements will not be eligible to take the exam, without the approval of the Couse Coordinator. Responsibility for monitoring attendance and participation is set out below.


    Models of class participation are varied to meet different educational styles, cultural approaches, and gender implications. They include:

    • small group discussions (groups of 4 – 6) with different students invited to convene and record discussion. Seminar leaders moving between groups and assisting with discussion.
    • Large group discussion with emphasis on directed questions, and reporting on preparatory work done for seminars.
    • Working in pairs on case evaluation and discussion.
    • Students being given specific small preparatory tasks for the seminar, so that they have the opportunity to prepare and be confident of delivery and are not “put on the spot”.
    • Emphasis on collaboration and support – students expected to assist each other in answering questions or developing themes in class discussions.
    It is expected that seminar leaders will identify students’ strengths and weaknesses and utilise these strategies so as to encourage development and confidence and ensure equality of participation.

    Responsibility for monitoring attendance and participation is shared between seminar leaders and students as follows:

    Attendance- Students who miss more than 3 seminars during the semester MUST contact their seminar leader to establish whether make-up work for the missed seminars is possible. IT IS EACH STUDENT’S OWN RESPONSIBILITY TO MONITOR THEIR ATTENDANCE AND ENSURE THEY HAVE SATISFIED THE MINIUMUM ATTENDANCE REQUIREMENT.

    Satisfactory participation- If students have satisfied the attendance requirement, but have failed to satisfactorily participate in seminars, this will be brought to their attention by the SEMINAR LEADER. The seminar leader and student will then discuss the participation requirements of the course and any obstacles to participation by the student. If appropriate, additional work (as negotiated by the seminar leader and student) may be completed by the student to supplement their participation.
    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.

    Assignments may be required to be submitted electronically as well as in hard copy. Instructions about any electronic submission requirements will be provided with the assignment instructions.

    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 in printed form, 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 returned to students within 3 weeks of the due date with written feedback. Students will be notified by email when assignments are ready for collection from the Law School Front Office.
    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.

  • 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.

    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.

    For more information please check out the Writing Centre website at http://www.adelaide.edu.au/writingcentre/  

    Lex Salus Program

    Lex Salus was founded in 2013 by Adelaide Law School Wellbeing officers Ms Corinne Walding, Ms Kellie Toole and Dr Mark Giancaspro. Lex Salus is an initiative of the Adelaide Law School aimed at raising law student awareness of the importance of mental, physical and nutritional health across all year levels of the degree, and of the various counselling, disability and equity services both within and outside the University that can provide help. Research shows that law students, both in Australia and in many jurisdictions around the world, experience the highest levels of stress, anxiety and depression out of any other discipline. Many do not get enough sleep, maintain a healthy diet or achieve a realistic work/life balance. Making matters worse, they are unwilling or afraid to speak up for fear of feeling 'weak' or because of the negative stigma that attaches to seeking help. Lex Salus is dedicated to tackling these problems head-on.

    Counselling Service

    The University Counselling Service provides a free and confidential service to all enrolled students. We encourage you to contact the Counselling service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life. More information is available at https://www.adelaide.edu.au/counselling_centre/

  • Policies & Guidelines

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

    Further information regarding the Law School Policies and Procedures in relation to Supplementary Assessment, Extensions, and Remarks etc can be found at:

    https://unified.adelaide.edu.au/group/law-school/policies-and-procedures

    Plagiarism and other forms of cheating

    Plagiarism is a serious act of academic misconduct. All students must be familiar with the Adelaide Law School Enrolment Guide, and should note in particular the sections relating to plagiarism, grievance procedures and academic conduct within the Law School and the University.

    Plagiarism is a serious matter and is treated as such by the Law School and the University. Please be aware that “academic dishonesty” (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to refuse 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.

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