Evidence Study Guide PDF

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LLB303

EVIDENCE STUDY GUIDE SUMMER SEMESTER 2018 FACULTY OF LAW

LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

TABLE OF CONTENTS INTRODUCTORY GUIDE...........................................................................................4 Part A: Unit Material

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1.Synopsis................................................................................................................................................5 2.Rationale................................................................................................................................................5 3.Aim..........................................................................................................................................................6 4.Learning Outcomes..............................................................................................................................6 5.Content...................................................................................................................................................6 6.Approaches to teaching and learning...............................................................................................7 7. Assessment..........................................................................................................................................8 8. Academic Integrity...............................................................................................................................9 9. Resource Materials.............................................................................................................................9 10. Risk Assessment Statement...........................................................................................................9 11.Use of Study Guide............................................................................................................................10 12.External Attendance School.............................................................................................................10 13.Study Hints and Tips..........................................................................................................................10 14.Timetable.............................................................................................................................................11 15.Teaching Staff.....................................................................................................................................12 16.Case List..............................................................................................................................................12 Part B: Faculty Policies

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STUDY GUIDE...........................................................................................................18 Module 1

19

Module 2

23

Modules 3-5

32

Modules 7-8

45

Module 9

52

Module 10

55

Module 11

61

Module 12

65

PAST EXAMINATION PAPER....................................................................................67 Key Administrative Dates

75

Legal Citation Guide

75

 QUT Faculty of Law 2018

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LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

INTRODUCTORY GUIDE

 QUT Faculty of Law 2018

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LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

Part A: Unit Material Unit Code:

LLB303

Unit Title:

Evidence

Credit Points:

12.00

Prerequisites:

LLB106 Criminal Law

Corequisites:

Nil.

Antirequisites:

Nil.

Equivalents:

LWB432 Evidence

Other Requisites:

Nil.

Assumed Knowledge:

Nil.

Teaching Period(s):

Summer School

Year of Offer:

2018

First Year Unit (Yes/No) (does not display on QUT Virtual)

Coordinator:

No Paul Arthur

1. Synopsis The law of evidence concerns those rules and principles which govern the presentation and proof of facts and information in court proceedings, both civil and criminal. The unit primarily covers State jurisdiction.

2. Rationale The law of evidence is concerned with rules about presenting and proving facts to a court. The rules of evidence are vital to the adversarial system of justice in Australia. Civil and criminal trials largely involve the application of substantive law to the facts as admitted into court, according to the rules of evidence. A sound knowledge of the rules of evidence is necessary for the conduct of litigation, either as a barrister or as a solicitor. An understanding of these rules is essential for lawyers to effectively prepare for trial and advocate for their clients in court.

 QUT Faculty of Law 2018

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LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

This unit is a compulsory unit, placed towards the end of the law degree, and builds upon foundational knowledge acquired in your criminal law study. It develops your skills relating to advocacy.

3. Aim The aim of this unit is to provide you with a knowledge and understanding of the rules of evidence within the context of the adversarial system of justice.

4. Learning Outcomes At the completion of this unit you should be able to: (1) Apply those rules of evidence which operate in Queensland to real world fact scenarios, demonstrating a conceptual and applied understanding of the relevant laws and procedures. (CLO 1.1; 2.1; 2.2) (2) Critically analyse the links between the conduct of civil and criminal litigation and the rules of evidence. (CLO 1.1; 2.3) (3) Appraise the operation of the rules of evidence in a wider context including Indigenous, racial, cultural and gender perspectives. (CLO 1.3; 1.4; 4.3) (4) Apply ethical standards and professional responsibility within the law and legal profession in the context of trial advocacy. (CLO 5.1; 5.2) and (5) Effectively communicate evidential concepts and arguments. (CLO 4.1)

5. Content The unit covers the rules of evidence as applied in Queensland and Federal criminal and civil jurisdictions. Fundamental concepts relating to the adversarial system including the role of the advocate, ethical issues, the burden of proof and judicial discretion are dealt with initially. The unit proceeds to the various means of proof - oral testimony, documents and real evidence. Emphasis is placed on the trial process competence and compellability, examination of witnesses generally, and of particular witnesses whose evidence may require an appreciation of gender and cultural differences. Exclusionary rules such as hearsay, character and similar fact evidence and opinion evidence and their exceptions are considered in depth. Graduate Capilbilities Your understanding of the unit content and the further development of these skills will assist you to acquire the following law graduate capabilities: 1. Discipline Knowledge; 2. Problem Solving, Reasoning and Research; 3. Effective Communication; 4. Life Long Learning; 5. Work Independently and Collaboratively; 6. Professional, Social and Ethical Responsibility; and 7. Characteristics of self-reliance and leadership.

 QUT Faculty of Law 2018

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LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

6. Approaches to teaching and learning The teaching and learning approach is blended, with a combination of online selfdirected learning activities and face-to-face problem solving to facilitate independent learning. These are supplemented by the Ask a Question Forum and Study Guide which will assist in understanding and clarifying basic concepts, providing the foundation for a deeper independent engagement with the complex material. Learning Activities The lectures for this subject are pre-recorded and are to be found in the Modules which have lectures. Online Learning Activities will be available from modules 2-5 and 7-11 and will not be timetabled. They will consist of online self-directed learning activities such as short videos, reading extracts, and practice quizzes to communicate and test understanding through independent learning. The aim is to help students absorb and use the content through active participation rather than passive listening. To get the most out of this approach, students should complete the modulely activities at their own pace to ensure understanding. The purpose of lectures is to highlight the more important concepts and rules of evidence each module to focus your learning. Not all topics will be directly addressed in lectures, however unless specifically advised to the contrary students must assume that all topics in this Study Guide are fully examinable. Tutorials Tutorials will be held in modules 3-5, 7-9 and 11-12. They are of 2 hours duration and will be predominantly collaborative problem-solving sessions designed to emphasise the practical application of the rules of evidence and to broaden your understanding of evidence concepts. If attending tutorials you are expected to have prepared adequately to actively participate. For external students, a tutorial will be recorded. Self-directed Online Learning Exercises Self-directed online learning exercises are released on Blackboard (under the Learning Resources link) on a modulely basis in modules 2-5 and 7-11. For each module, students will complete a combination of activities. For example, there might be a short introductory reading, a short video, a case extract, and a practice quiz for each concept. External Attendance School There will be no External School

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LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

7. Assessment General Assessment Information

In this unit there is both formative assessment (to receive feedback on your learning) and summative assessment (to receive feedback and a mark). Feedback to students

In tutorials, your tutor's questions, comments and the group discussions will provide you with formative feedback. Where possible, the lecturer will discuss past exam paper questions, which will provide you with formative feedback on your understanding of the rules of evidence and your ability to apply the ISSAC ISSACS problem solving approach. The interactive online learning activities that you work through online will provide you with immediate feedback as to your understanding. You will also receive general and individual feedback on summative assessment. The Unit Co-ordinator will also be available at specified times to answer questions in person, or via telephone or email. Assessment details

Summative assessment Assessment Item No. 1 Assessment name: Video Advocacy Description: Based on a provided scenario, students will record oral submissions on a video and submit it online. Relates to learning outcomes: 1, 3, 4, 5, particularly 5 Weight: 20% Due date: To be submitted online on Tuesday 18th December 2018 through Youtube and Turnitin. Assessment Item No. 2 Assessment name: Written Advocacy Description: Students will be given a scenario and asked to provide written submissions. Relates to learning outcomes: 1, 3, 5, particularly 3 Weight: 20% Due date: Submitted on Sunday 13th January 2019 through Turnitin .

Assessment Item No. 3 Assessment name: Exam Description: An open book exam that examines all topics in the unit. Further details of the structure of the exam will be provided in due course. Relates to learning outcomes: 1-5, particularly 1 Weight: 60% Due date: End of Summer semester exam period

 QUT Faculty of Law 2018

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LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

8. Academic Integrity QUT is committed to maintaining high academic standards to protect the value of its qualifications. To assist you in assuring the academic integrity of your assessment you are encouraged to make use of the support materials and services available to help you consider and check your assessment items. Important information about the university’s approach to academic integrity of assessment is on your unit Blackboard site. A breach of academic integrity is regarded as Student Misconduct and can lead to the imposition of penalties.

9. Resource Materials Prescribed Materials David Field, Queensland Evidence Law (LexisNexis, Chatswood: 4th ed, 2017) Evidence Act 1977 (Qld) (latest reprint) Cases and material prescribed by the School of Law. Recommended Reference Materials T Crofts and K Burton, The Criminal Codes: Commentary and Materials (Thomson Reuters Sydney, 6th ed, 2009) JRS Forbes, Evidence Law in Queensland (LBC, Sydney, 9th ed, 2012) JD Heydon, Cross on Evidence (Butterworths, Sydney, 9th ed, 2012) A Hemming, R Layton, Evidence Law in Qld, SA and WA, The Law Book Co, 2016 Andrew Hemming, Miiko Kumar, Elisabeth Peden, Evidence Commentary and Materials (Lawbook Co., Sydney, 8th ed, 2013) J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Buttlerworths, Sydney, 1995) S Odgers, Uniform Evidence Law (LBC, Rozelle, 11th ed, 2014) Also available on Lawbook Online. Hunter, Cameron and Henning, Litigation II Criminal Procedure (Butterworths, Sydney, 7th ed, 2005) Arenson K, and Bagaric M, Rules of Evidence in Australia: Text and Cases (Butterworths, Sydney, 2nd ed, 2007) Evidence Act 1995 (Cth) (latest reprint) The Supreme and District Court Benchbook (available online) – highly recommended

Blackboard site Online resources for this unit are available on the unit blackboard site.

10. Risk Assessment Statement Apart from the explicit materials dealt with in the subject, there are no out of the ordinary risks associated with it.

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LLB303 Evidence 2018

Study Guide SUMMER SEMESTER

11.

Use of Study Guide

1.

This Study Guide is not a substitute for reading textbooks, statutes and cases; it is an adjunct designed to guide you to relevant materials which must be studied carefully.

2.

References supplied to casebooks, textbooks and journal articles direct your attention to materials which explain and amplify the points and issues raised in the cases and statutes. Care must be taken to distinguish the law of Queensland from that of other places.

3.

The Evidence Act 1977 (Qld) will be studied in this unit. The Evidence Act 1995 (Cth) will occasionally be referred to, but will not be assessable.

12.

External Attendance School

There will be no External School

13.

Study Hints and Tips

For exam preparation, students should review past examination papers including the examination paper contained in this study guide, and tutorial questions which are past exam questions.

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LLB303 Evidence 2018

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Study Guide SUMMER SEMESTER

Timetable Module

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2

3

LECTURE TOPIC Unit Administration Sources of Law of Evidence The Adversary System Functions of Judge, Counsel and Jury Ethical Issues Facts in Issue Burden and Standard of Proof Framework for Admission of Evidence Relevance, Voir Dire, Principal Items of, Judicial Evidence, Formal Admissions, Judicial Notice Oral Testimony Competence and Compellability Objections

The Trial Process Examination-in-Chief Cross-examination Rebuttal

4

TUTORIAL

Tutorial 1 – Saturday 24th November 2018 at the QUT Sources of Law of Evidence The Adversary System Functions of Judge, Counsel and Jury Facts In Issue Burden and Standard of Proof Framework for Admission of Evidence Relevance Tutorial 2 – Saturday 24th November 2018 at the QUT Competence and Compellability; The Trial Process

Examination of Particular Classes of Witnesses - Use of Interpreters, Children, Complainants in Sexual Offences, The Indigenous Witness

5

6

No Lecture

7

Hearsay Exceptions to Hearsay

Tutorial 3 – Saturday 24th November 2018 at the QUT Examination-in-Chief and Objections Cross-examination and Objections Classes of Witnesses No Tutorial

Tutorial 4 – Saturday 8th December 2018 at the QUT Introduction to Hearsay

 QUT Faculty of Law 2018

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LLB303 Evidence 2018

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Module

LECTURE TOPIC

8 Exceptions to Hearsay Res Gestae

TUTORIAL Issues Tutorial 5 – Saturday 8th December 2018 at the QUT Hearsay Exceptions to Hearsay Res Gestae

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10

11

12

Content and Advice for Case Analysis Documents,Views and Demonstrations Exhibits Photographs and Tape Recordings CASE ANALYSIS DUE Admissions Confessions Exclusionary Rules and Discretions Circumstantial Evidence Character Evidence

Opinion Evidence Exam Preparation and Advice

Tutorial 6 – Saturday 8th December 2018 at the QUT Documents, Real Evidence and Views No Tutorial

Tutorial 7 – Saturday 15th December 2018 at the QUT Admissions Confessions Exclusionary Rules and Discretions Tutorial 8 – Saturday 15th December 2018 at the QUT Circumstantial Evidence Opinion Evidence

13

15.

Personal Revision and Reflection

No Tutorial

Teaching Staff

Paul Arthur Unit Coordinator, and Tutor  : [email protected]

 QUT Faculty of Law 2018

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LLB303 Evidence 2018

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Study Guide SUMMER SEMESTER

Case List

This list contains citations of the principal cases to be read by students. Reading will be more specifically directed in lectures and tutorials. Other cases may also be referred to in class and/or advised through Blackboard notices. Unless otherwise advised, all cases will be potentially examinable. Module One Apostilides (1984) 53 ALR 445 Annewetey [1976] Qd R 161 Giannarelli v Wraith (1988) 62 ALJR 611 Hsing (1984) 12 A Crim Rep 196 Module Two Woolmington v DPP [1935] AC 462 Doney v R (1990) 171 CLR 207 Bunning v Cross (1978) 19 ALR 641 Hasler [1987] 1 Qd R 239 R v Day & Anor [2008] QSC 358 R v Freeman [2009] QCA 354 R v Brown [2011] QCA 16 Mifsud v Campbell (1990) 21 N.S.W.L.R. 725 Module Three R v BBR [2009] QCA 178 R v BBQ [2009] QCA 166 R v Tran [2009] QDC 82 Mooney v James [1949] VLR 22 R v Saunders (1985) 15 A Crim R 115 at 118 R v Foley [2000] I Qd R 201 Modules Four – Five King v Bryant [1956] St R Q 570 Sorrenson v McNamara (2003) QCA 149 Nominal Defendant v Clements (1960) 104 CLR 476 R v Hadlow [1992] 2 Qd R 440 McClellan v Bowyer (1961) 106 CLR 95 R v Kong [2009] QCA 34 R v Baira [2009] QCA 332 R v Le [2009] QCA 343 R v Franicevic [2010] QCA 36 Mursic [1980] Qd R 481 Libke v R [2007] HCA 30 Allied Pastoral Holdings v FCT [1983] 1 NSWLR 1  QUT Faculty of Law 2018

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LLB303 Evidence 2018

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R v Navarolli [2009] QCA 49 McGregor [1984] 1 Qd R 256 R v Umanski (1961) VR 242 Piddington v Bennett and Woods (1939) 63 CLR 533 Nicholls v R [2005] HCA 1 Singleton [1986] 2 Qd R 537 Chin (1985) 157 CLR 671 Soma [2003] HCA 13; (2003) 77 ALJR 849

Module Seven Subramaniam v Public Prosecutor [1956] 1 WLR 965 Myers v DPP [1965] AC 1001 Walton v R (1989) 63 ALJR 226 Pollitt v R (1992) 66 ALJR 613 Lee v R (1998) 72 ALJR ...