New Unit Guide 2021 PDF

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Unit guide for LLB303 for Sem 1 2021. 2...

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LLB303

EVIDENCE UNIT OVERVIEW SEMESTER 2 2021

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Synopsis Evidence is a core unit in the law degree. Knowledge of the rules of evidence and of the procedures by which it must be tendered and dealt with in court is necessary for the conduct of litigation as either a barrister or a solicitor and for admission to practice. This unit builds upon your study of criminal procedure in LLB106 Criminal Law.

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. 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.

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.

Learning Outcomes On successful completion of this unit you will be able to: 1. Apply the rules of evidence that operate in Queensland to real world fact scenarios (CLOs 1.1, 2.1) 2. Utilise the rules of evidence to advocate for a client and address their needs (CLOs 1.1, 2.2) 3. Critically analyse the rules of evidence and identify possibilities for reform as appropriate (CLOs 1.1, 2.3) 4. Analyse how the rules of evidence operate in a wider context, taking into account Indigenous, racial, and cultural perspectives (CLO 1.2, 1.4) 5. Apply ethical standards and professional responsibility within the law and legal profession in the context of trial advocacy (CLO 5.1) 6. Effectively construct and communicate oral and written arguments (CLOs 4.1, 4.2)

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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 follow 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.

Approaches to teaching and learning This unit is designed to be studied in a blend of live and asynchronous modes. Students will be supported and engaged in this unit through the use of weekly learning resources, including instructional videos and screencasts, prescribed readings from the textbook and other sources, facilitated online and on-campus tutorials, interactive quizzes and a collaborative discussion forum. Your participation in the unit will include:  Engagement with weekly online instructional videos and screencasts  Completion of weekly prescribed readings  Completion of tutorial practice questions and participation in facilitated online or on-campus tutorials  Engagement with online quizzes  Engagement with the online Discussion Forum To access the materials for a given week – just open the folder for that week from the Unit Map on the Learning Resources page.

Learning Activities In each week there will be online self-directed learning activities such as short videos, prescribed readings, 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 weekly activities at their own pace to ensure understanding.

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The purpose of Learning Activities is to highlight the more important concepts and rules of evidence each week to focus your learning. Not all topics will be directly addressed in the Learning Activities, 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 weeks 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.

 A recorded tutorial will be recorded and made available to all students in each tutorial week. This is in addition to the on-campus and Zoom sessions.  If you are an external student, you can particiapte in one of the live Zoom tutorial sessions.

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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 - apart from the final exam for which detailed general feedback will be provided. Tutors and lecturers 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 Thursday 9th September (Week 7) 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 Thursday 7th October (Week 10) 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 semester exam period

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Resource Materials Prescribed Materials Textbook J.S. Forbes, Evidence Law in Queensland (Thomson Reuters,12th ed, 2018) – OR – 13th ed. Note – the 13th edition of Forbes is due for delivery to the QUT bookstore by the end of Week 2. Students are able able to order in advance, hard-copies of the book from the publisher’s website and they will include in that purchase an ebook free of charge – at https://legal.thomsonreuters.com.au/evidence-law-in-queensland-13th-editionbook/productdetail/129324 This is only available from that website and the PROMO CODE for the offer is: UNIS15

 For this semester, either the 12th or 13th edition may be used for your study purposes. The Blackboard site currently makes reference to sections of the 12 th edition, but updated references to the 13 th edition will be added when it becomes available. Evidence Act 1977 (Qld) (latest reprint) Cases and material prescribed by the Unit Coordinator. Recommended Reference Materials T Crofts and K Burton, The Criminal Codes: Commentary and Materials (Thomson Reuters, 7th ed, 2018) JD Heydon, Cross on Evidence (LexisNexis Butterworths, Sydney, 12th ed, 2020) L Stuesser, An Introduction to Advocacy (Thomson Reuters, 2nd ed, 2011) Blackboard site Online resources for this unit are available on the unit blackboard site.

Timetable WEEK BEGINNING

1 (26 Jul)

2 (02 Aug)

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STUDY TOPICS 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 -

TUTORIAL NO TUTORIAL

NO TUTORIAL

Sources of Law of

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WEEK BEGINNING (09 Aug)

4 (16 Aug)

5 (23 Aug)

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STUDY TOPICS Competence and Compellability Objections

The Trial Process Examination-in-Chief Cross-examination Rebuttal Examination of Particular Classes of Witnesses - Use of Interpreters, Children, Complainants in Sexual Offences, The Indigenous Witness

NO LECTURE

TUTORIAL Evidence The Adversary System Functions of Judge, Counsel and Jury Facts In Issue Burden and Standard of Proof Framework for Admission of Evidence Relevance Competence and Compellability The Trial Process

The Trial Process Classes of Witnesses

NO TUTORIAL

(30 Aug)

7 (06 Sep)

Hearsay Exceptions to Hearsay

Introduction to Hearsay Issues

VIDEO ADVOCACY DUE

8 (13 Sep)

9 (20 Sep)

Exceptions to Hearsay Res Gestae

Hearsay Exceptions to Hearsay Res Gestae

Documents, Views and Demonstrations Exhibits Photographs and Tape Recordings

Documents, Real Evidence and Views

MID SEMESTER VACATION

10

WRITTEN ADVOCACY DUE

NO TUTORIAL

(04 Oct)

11 (11 Oct)

Admissions Confessions Exclusionary Rules and Discretions Circumstantial Evidence Character Evidence

Admissions Confessions Exclusionary Rules and Discretions 7

WEEK BEGINNING

12 (18 Oct)

13 (25 Oct)

STUDY TOPICS Opinion Evidence Exam Preparation and Advice Personal Revision and Reflection

TUTORIAL Circumstantial Evidence Opinion Evidence NO TUTORIAL

NO LECTURE

Teaching Staff Dr Nigel Stobbs Unit Coordinator  (07) 3138 4445 : [email protected] Consultation time: Wednesday 10am -12pm

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Case List This list contains citations of the primary cases discussed in lectures and tutorials. Other cases may also be referred to in class, in the textbook, in prescribed readings and/or advised through Blackboard notices. You are not expected to read all these cases in full. Advice on which cases to engage with in-depth will be given in each week’s learning resources. Use this list a a source of citations and to get an idea of what the major sources of common law are for each topic. Week 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 Week 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 Week 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 Weeks 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 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

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Week 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 1484 Week Eight Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 Ratten v R [1972] AC 378 Vocisano v Vocisano (1974) 130 CLR 267 Eaton v Nominal Defendant [1995] QCA 435 Ramsay v Watson (1961) 108 CLR 642 R v McGrane (2002) QCA 173 R v Crump [2004] QCA 176 R v Burke [2009] QDC 334 R v Martin [2009] QDC 324 R v D [2003] QCA 151 R v FQ [2008] QCA 68 Week Nine Scott v Numurkah Corporation (1954) 91 CLR 300 R v Ekert [1975] Qd R 429 Butera (1988) 62 ALJR 7 Sitek [1988] 2 Qd R 284 Commissioner for Railways v Young (1962) 106 CLR 535

Week Ten Thatcher v Charles (1961) 104 CLR 57 Doolan v R [1962] Qd R 449 RPS v R (2000) 74 ALJR 449 Hall [1971] 1 WLR 298 Parkes [1976] WLR 1251 R v Salahattin v R [1983] VR 521 R v Lester [2010] QCA 152 Woon (1964) 109 CLR 529 Edwards (1994) 68 ALJR 40 R v Black [2009] QCA 198 Petty (1991) 173 CLR 95* Weissensteiner (1994) 68 ALJR 23 McDermott v R (1948) 76 CLR 501 Foster (1993) 67 ALJR 550 Swaffield (1998) 72 ALJR 339 Tofilau and others v The Queen [2007] HCA 39 Em v The Queen [2007] HCA 46 Tipler v The Queen [2009] QDC 240 Week Eleven Wilson (1970) 44 ALJR 221 Plomp (1963) 110 CLR 234 Shepherd (1990) 170 CLR 573 Jones [1993] Qd R 676 Eichsteadt v Lahrs [1960] Qd R 487 Pfennig v The Queen (1995) 182 CLR 461 R v Phillips [2006] HCA 4 10

R v Roach [2009] QCA 360 HML and others v The Queen [2008] HCA 16 Phillips (1985) 62 ALR 479 Week Twelve Taylor v Harvey [1986] 2 Qd R 137 Weal v Bottom (1966) 40 ALJR 436 Clark v Ryan (1960) 103 CLR 486 Ramsay v Watson (1961) 108 CLR 642 Sherrard v Jacob [1965] NI 151 R v Ward [2009] QSC 38 Murphy v The Queen (1989) 167 CLR 94

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EVIDENCE FILTER 1. In this unit we are focusing on the Queensland jurisdiction, so the applicable law is the Queensland Evidence Act informed by the common law. In other situations you need to consider jurisdiction: which law (Cth or State, and which State) is applicable. Evidence is either oral testimony, a document, or a piece of real evidence. The classification of your piece of evidence as being one of these three will determine some of the rules of evidence which apply to it. A piece of paper with writing on it, for example, may be tendered as a piece of real evidence or as a document. 2. To be admissible the evidence must be relevant to the proceedings. To be relevant it must have the potential to rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue – that is, a fact which constitutes an element of the offence with which a party is charged or an element of the cause of action which a plaintiff is pursuing. So we use evidentiary facts to establish facts in issue. ‘The witness saw a man with an Australian flag tattoo on his right arm’ – this evidentiary fact may be evidence of a fact in issue – namely, identity of the thief. 3. If the evidence is relevant then it must not be in breach of any statutory or common law exclusionary rules – such as the rules against hearsay, or opinion evidence or prior consistent statements – or if it does breach, then an exception must apply. 4. If it passes that hurdle then it will be admissible but to be admitted – it must not be vulnerable to the exercise of the judicial discretion to exclude evidence which the judge considers is either unfair – meaning that its probative value (or the strength of its relevance) is greatly outweighed by its prejudicial potential (meaning its potential to undermine the tribunal of fact’s opinion of the defendant or the accused for a reason not related to the current matter) – or on public policy grounds (such as a reluctance to admit evidence which has been obtained unlawfully). Remember that if the evidence is not admissible at law then a judge has no discretion to admit it. 5.

If the evidence passes through all these filters and is admitted – then how useful that will be to the party who adduces it will depend on the weight given to it by the tribunal of fact. And that weight may be virtually none, or overwhelming – or anything in between.

You should develop your own ‘evidence filter’ as you work your way through the learning materials in LLB303. The example above is a basic outline to help you get started.

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