Unit Guide 2018 PDF

Preview

Summary

unit guide...

Description

LLB352 Evidence

Unit Information and Learning Guide

Semester 2, 2018

This information should be read in conjunction with the online learning materials which can be found on your MyUnits page.

Unit coordinator Stephen Shaw School of Law [email protected]

2

Murdoch University

© Published by Murdoch University, Perth, Western Australia, July 2018.

This publication is copyright. Except as permitted by the Copyright Act no part of it may in any form or by any electronic, mechanical, photocopying, recording or any other means be reproduced, stored in a retrieval system or be broadcast or transmitted without the prior written permission of the publisher.

Murdoch University

3

Contents Unit information Information about the unit Contact details How to study this unit Resources for the unit Study schedule Assessment Tutorial scenario

4

5 7 8 10 11 13 19

Murdoch University

Information about the unit Welcome to LLB352 Evidence Unit description This unit, which spans both the Commonwealth and Western Australian jurisdictions, deals with the rules affecting the admissibility of evidence and the examination of witnesses. These rules will be explored within the framework of the trial process. For assessment in the unit students will be required to interpret the statutes and case law relevant to each jurisdiction and apply them in the construction of a trial. The unit also re-introduces students to the Professional Conduct Rules and the ethical obligations governing practitioners.

Aims of the unit The primary aim of this unit is to provide you with both practical and theoretical understandings of the law of evidence as it pertains to civil and criminal matters. Procedural and substantive issues will be considered by way of examination of the common law and the relevant statutory provisions; The Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth). In addition to introducing you to the law of evidence, this unit aims to familiarise you with the Professional Conduct Rules as compiled by the Western Australian Legal Practice Board. The secondary aim of the unit is to provide you the opportunity to gain skills in communicating your legal knowledge in a manner appropriate to your target audience. You will develop these skills by completing a research memorandum in accordance with strict guidelines. In part, the aim of the research assignment is to increase your understanding of the importance of recognising and following instructions.

Learning outcomes for the unit On successful completion of the unit you should be able to:   

apply the legislation and common law principles relevant to the law of evidence recognise that ethical issues when determining the use of evidence and demonstrate how those issues should be dealt with present your written views on issues of evidence in a manner that would be accepted (and hopefully appreciated) by your future employers

Graduate attributes developed in the unit This unit will contribute to the development of the following Graduate Attributes.  Written Communication

Murdoch University

5

  

6

Critical and creative thinking Ethics In-depth knowledge of a field of study

Murdoch University

Contact details Unit Coordinator’s contact details Stephen Shaw is the coordinator for this unit and will deliver most of the lectures. He will also set the assignment, and final examination. Stephen will also run half of the unit tutorials. Beatrice Hamilton will be in charge of the other half of the tutorials. You should direct any questions you have about the unit to me (Stephen). I will be available for student consultation during the semester in my office. My consultation times will be posted on the LMS website and on my office door. Name: Stephen Shaw Email: [email protected] Room: 2.020 in BITL building Phone: +61 8 93606242

Administrative contact details The law school administration can be contacted on 9360 7815.

Murdoch University

7

How to study this unit As a general rule, students study evidence in the third year of the LLB or the second year of the Graduate LLB. Graduate students are sometimes told to do the course as part of first year, but I generally discourage this. There is even a strong argument that Evidence should be taken in the last year of study, as it is really an area of procedural rather than substantive knowledge. At the very least you should come to the unit with a reasonable understanding of why people turn to the law to resolve disputes. In substantive units such as Contract or Torts or Criminal Law, students are given facts and asked to apply the law. Those facts are taken as given, and are deemed to be in the possession of all the parties. They are ‘proved’ and students do not have to work out how to get them into court. Evidence overarches those units and deals with how the contractual document, or the witness who saw the car accident, or the confession of the alleged murder is dealt with (or possibly not accepted by) the court. A legal practitioner must have a good understanding of the rules and procedures of evidence regardless of the area of law within which he or she practices. Law students should keep this firmly in mind, what they learn in evidence should help refine their analysis of the facts in all the other areas of law that they study. Evidence is necessary prerequisite for the unit Civil Procedure, which we generally expect students to do in their last year of study.

Lecture times and venue Lectures will be held on Wednesday in ECL 4 between 6:00 and 9:00pm.

Time commitment This is a three point unit, and that means we consider that the average student will be required to spend 150 hours working on the unit materials to learn the unit content to an adequate level. There are 46hours of contact teaching time in the unit, roughly 4.5 hours per week. This means I expect you to spend three times as much time working on the unit (this includes readings, working on assignments and preparing for tutes) as you spend in class. It is important that you do that from week one. If you keep up, the material, while complex, is something you should be able to assimilate properly. If you let it slide and try to catch up later you are not likely to learn the material well enough for you to demonstrate you knowledge well in the exam.

Prizes The student with the top mark in this course will receive the SBM Legal prize in Evidence ($200).

8

Murdoch University

Tutorials There are ten tutorials connected with this unit. The tutorials adhere to the Small Group and Interactive Teaching and Learning Policy. The tutorials are not compulsory, but failing to attend them will affect your learning outcomes in this unit (and yes, the more you learn the better you will do in showing me that you learned and the better your marks will be) and thus your overall grade. The tutorials are firmly connected; if you engage in them all well and get a grip on what they are meant to help you learn your assignment and your exam results will reflect this. The tutorials are, in part, a dry run at the exam and those of you who choose to put work into the tutorials will find that you get a direct payout in the exam. The tutorial scenario is also a good guide as to what you expected to do in the major assignment, although in fairness to you the assignment will not require the depth of knowledge you will be expected to display in the exam. The tutorials are run in cycles, and you are expected (well encouraged at least) to attend both cycles. Cycle one tutorials will run in the 2nd, 4th, 6th 8th and 10th teaching weeks. Cycle two tutorials will run in the 3rd, 5th, 7th 9th and 11th teaching weeks. First cycle tutorials, run by Beatrice Hamilton, will have the tutorial material posted the week before the tutorial occurs. The tutorial scenario for cycle two tutorials (run by Steve) is provided at the end of this unit guide. The activities for each of the ten tutorials will be posted in LMS as the unit progresses. It is fairly simple, a criminal matter, with a client who whose veracity and integrity you may have some doubts about. There is a range of information surrounding the charges your client (you are the defence lawyer) has been charged with. As defence lawyer you must look after his interests without betraying your fundamental duty to the court. You will have to deal with ethical issues and you will find that ethical issues are part of the exam assessment. You are to take the role of a very junior practitioner. Please try to remember that if ethical issues seem hard, and let’s face it they always are, you can always ask for help. Yes, it is great if you know the answers, but very senior practitioners, men and women who are entitled to charge $500 to $800 dollars an hour (Queens Counsel and Senior Counsel) are obliged to give you free advice as to ethical issues if you contact them with a request for guidance when you are caught in an ethical dilemma. In short, when you are doing assessments in this unit and you identify an ethical dilemma and are unable to come to a conclusion as to what you should do (the essence of a dilemma really) you will get some marks for understanding you should call for help and knowing who you can safely go to; safely in this instance has to do with not betraying client confidentiality.

Further information on Tutorials

LMS Unit and recording lectures

Murdoch University

9

This unit is offered in on-campus mode only. However, I will be arranging to have the lectures recorded via LCS. The recordings will be available on the LLB352 LMS unit, usually within about a day after the lecture. You need to be aware that LCS recording is not always successful. Sound quality may be poor, and recordings streams may be slow to process depending on the type of computer you use to access them. The recordings often do not pick up questions from the class. If the LCS system breaks down or fails to record, I am not under any obligation to provide you with any further notes or materials. While attendance at lectures is not compulsory, for all of these reasons, I strongly encourage you to attend lectures whenever possible. I will post overhead guides to the lectures on the unit site before most of the lectures take place. Although my guides are fairly detailed, you are responsible for creating your own notes. I stress that the preparation of good notes is one very good way for you to internalise and comprehend the lectures and readings. I recommend that you download the guides, reformat them to allow room to add your own notes, and take them to the lecture. If you take that approach you will be able to spend less time trying to frantically scribble down everything that I say, and spend more time listening to and absorbing the lecture material. I also encourage students to meet in small, informal study groups. (Study-groups should, of course, steer clear of collusion on assessment.) Sadly, no one except another law student will ever want to discuss Evidence with you, so study groups, or at least the chance to discuss Evidence with a fellow student, will be one of the few ways you can really consolidate your learning. I believe that the material you study does not properly consolidate and become your own until you are able to explain it clearly to another person. In the end, you have to explain it to me, through the medium of an exam.

Once I have posted material, you are deemed to have received it. If you find yourself I will be posting all course information on LMS, including this unit guide.

disadvantaged in any way because you did not access the site and were thus unaware of any pertinent course information I will not accept your ignorance as an excuse or in mitigation. For that reason, I strongly suggest you check the LMS unit on a daily basis.

10

Murdoch University

Resources for this unit To undertake study in this unit, you will need: Field and Offer: Western Australian Evidence Law. (LexisNexis 2015).  This text deals with the Western Australian Evidence Act and law. I will be providing some readings for the WA jurisdiction and will nominate cases I expect you to read for some lectures. We will also be looking at the Commonwealth Evidence Act but you will not need a specific text for that. The Act itself will do.

A copy of each of the following Acts: Evidence Act 1906 (WA) Evidence Act 1995 (Cth) You can download the two Acts from the net, or purchase them from the State and Commonwealth law publishers. If you do not have these Acts you are not likely to pass the exam in this course. I find that downloading an electronic version and then printing the sections that we look at in detail will usually suffice for the exam. I will not examine on sections that I have not either specifically pointed out or taught. You will also need to access the Legal Profession Conduct Rules 2010 and familiarise yourself with them. They are now part of the delegated legislation that flows from the Legal Profession Act 2008 (WA) and can be found via the online state law publisher or through AustLII.

Murdoch University

11

Study schedule This timetable will help you to plan your study over the semester. The date for each lecture is indicative and may be changed. I hope to have at least one guest lecturer and I am not yet clear on when that will be. Date

Lecture

Topic and learning activities

August 1

1a

Introduction to the unit. (Structure of a trial, hearsay)

August 1

Aug 8

Aug 8

Aug 15

Aug 15

1b

2a

Chapter 1 Presumptions, prima fascia case and no case submissions

2b

3a

Chapter 1 Judicial Notice/ Formal Admissions

3b

Chapter 2 Competence and Compellability, Privilege

4a

Aug 22

4b

Due

We will have a brief intro to hearsay as some working knowledge of that concept is required up front Please read Chapter 1 Relevance and Admissibility

Chapter 2 Onus of Proof/Standard of Proof

Aug 22

Assessment item

Chapter 4 and 5 Privilege continued (including negotiations and public interest immunity) As above Examination of Witnesses 1 Chapter 6 Study break

Aug 30 Sept 5

5a

Sept 5

5b

Examination of Witnesses 2 Chapter 6 The accused as witness

Sept 12

6a

Character and Similar Fact evidence Chapter 7

12

Murdoch University

Sept 12

6b

Character and Similar Fact evidence continued

Sept 19

7a

Documentary evidence

Sept 19

7b

Chapter 3 Demonstrative and real evidence Chapter 3 Study break

Sept 24 Oct 3

8

Hearsay: The exclusionary rule. Chapter 9 and 10

Oct 3

9

Hearsay: The exceptions to the rule.

Oct 10

9b

Chapter 9 and 10 Opinion evidence (including expert evidence)

Oct 10

10

Oct 17

10b

Oct 17

11

12

but please watch the following video, and have a think about the value of identification evidence. http://www.youtube.com/watch?v=X0PHpUbHdY&feature=related Review of assignment. Corroboration and other matters

13

Chapter 11 Revision Class

Oct 31

Murdoch University

Monday Oct 1 at 11:59pm

Chapter 11 Confessions and admissions Please watch: https://www.youtube.com/watch? v=i8z7NC5sgik

Chapter 12 Illegally obtained evidence Chapter 12 Identification evidence

Oct 26

Assignment: The LRM

13

Assessment Assessment for this unit is conducted in accordance with the Assessment Policy.

Schedule of assessment items There are three assessments in this unit. One, a short trial ad exercise, is optional. You will be assessed on the basis of: Assessment item Trial Ad Assignment (The LRM)

Description Written submissions This assignment is compulsory, and will require you to write a memo on the material from a scenario that I will provide early in the semester.

Value

Final examination

The exam is open book.

50%or 40%

10% 50%

Due TBA Thursday 21 September 12 noon

Assessment details: Trial Ad exercise If you choose to do the optional Trial Ad exercise you will be given a topic and be told if you represent the prosecution or accused (the matter is criminal). You will prepare short written submissions and will later present your oral argument to a single judge. The issue will relate to S31A of the WA Evidence Act. Your argument should be about 8 to 10 minutes long maximum. You will work in tandem with a junior student who is doing the unit Criminal Law. That student will address the court as to an issue of criminal law while your address will pertain to evidence. Further details about this assessment will be made available once it is properly organised!

Assignment: The Legal Research Memorandum (LRM) Topic and Grade The topic for the LRM will be posted in week 2 of the semester. The assignment mark makes up 50% of the overall mark in the unit. The Standard The form of the LRM you write is to be the sort of good legal writing that a senior lawyer expects to receive from another lawyer in the firm. The mark for your LRM will be determined by reference to the quality of its analysis, its clarity and organisation, and its presentation, including its freedom from distracting stylistic errors (grammatical, spelling, punctuation and typographical). Note that “presentation” also includes your consistent use of a recognised citation system in the LRM. A brief guide to the

14

Murdoch University

format of the LRM will be posted in the assignment icon of the site. Marks for the LRM will, in part, relate to strict compliance with the format guide. Set out and length. The LRM is to be typed in default 12 point type in Times New Roman type on e-version A4 paper. Margins must be a minimum of 2cm all round, and you must only write on one side of each piece of paper. There is a strict limit of 6 pages of 1.5 spaced type. Markers will check compliance and if your paper is found to be non-compliant it will then be made compliant and marked. Past experience suggests that non compliant papers tend to be several pages over length when made compliant and thus unlikely to attract a pass grade.

Your paper must be submitted in Word document not PDF! If an LRM is longer than 6 pages, the excess material will not be read. The format of the LRM will require final recommendations, and if a paper is over length, it is likely that the some or all of the recommendations will not be read. In such circumstances, over length papers are not likely to attract a pass grade. Deadline You are to submit your completed LRM via the LMS site on (or before) 11:59pm Monday 1 October. It must be in word. It must have a Law School Electronic Cover sheet AND the cover sheet sign off that I have provided on the LMS site. It is most important that you not confuse a deadline with a target when you are preparing written documents like the LRM All texts, and perhaps particularly legal ones, gain from some amount of unhurried critical contemplation before finalisation. For this reason, you should develop the habit of setti...