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70109 Evidence

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2020 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): ( 70218 Criminal Law OR (70114 Criminal Law and Procedure AND 70104c Civil Practice))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
Anti-requisite(s): 70717 Evidence and Criminal Procedure

Description

Evidence is used to resolve disputed facts in legal proceedings. The law of evidence considered in this subject covers the procedures and rules pertaining to the admissibility and use of evidence in court proceedings. In this subject students develop an understanding of the law of evidence by examining fundamental provisions within the Evidence Act 1995 (NSW) and (Cwlth). Students consider the interpretation of the Evidence Act 1995 in judicial decisions, the types of evidence and how they can be used to establish facts, and the law reform processes that underpin the rules in NSW and federal courts. This subject develops the knowledge base and analytical skills of students through problem-solving exercises that mirror the legal and factual issues that arise in legal practice when determining the admissibility of evidence. Students also undertake research in order to critically evaluate the legal, ethical and policy frameworks that underpin the law and impact on the administration of justice. Evidence forms a core subject for all law degrees because it is a requirement for admission as a legal practitioner in all Australian jurisdictions. It is also one of the four topics assessed in the NSW Bar Exam (along with civil practice, criminal procedure, and ethics).

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

1. Interpret the fundamental rules of evidence in the Evidence Act 1995 (NSW) and case law.
2. Identify and apply the relevant standards of admissibility in resolving evidentiary issues in problem-based scenarios.
3. Reflect on the roles and professional responsibilities of lawyers in the administration of justice; and exercise ethical judgment when undertaking scholarly tasks.
4. Creatively and analytically evaluate factual, evidentiary and policy issues and construct reasoned, justifiable and logical legal and scholarly arguments.
5. Identify, analyse, evaluate and synthesise research materials and justify their relevance to evidentiary and policy issues.

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

  • Legal Knowledge
    A coherent understanding of fundamental areas of legal knowledge, including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice (LAW.1.0)
  • Ethics and Professional Responsibility
    A capacity to value and promote honesty, integrity, accountability, public service and ethical standards, including an understanding of approaches to ethical decision-making, the rules of professional responsibility and an ability to reflect upon and respond to ethical challenges in practice (LAW.2.0)
  • Critical Analysis and Evaluation
    A capacity to think critically, strategically and creatively, including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices (LAW.3.0)
  • Research skills
    Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues (LAW.4.0)
  • Communication and Collaboration
    Effective and appropriate communication skills, including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (LAW.5.0)

Teaching and learning strategies

Strategy 1: Preparing for class activity

Each week there are key resources, such as short videos, that introduce topics that students need to engage with before each lecture. These preparation activities assist students in understanding the lecture topics and enable them to participate actively in the lectures. Students also read legislation, cases, law reform reports, text book sections and journal articles each week to prepare for their participation in tutorial activities. These include collaborative discussion for the purpose of problem solving, critiquing research, constructing mind maps and formulating problem questions. Students should consider their responses to the tutorial questions prior to participating in tutorials. Tutorial questions are in the subject documents folder on UTSOnline. Students can access all materials through UTSOnline. As a part of preparation students can post questions on the Discussion Board on UTSOnline to seek clarification and feedback on their understanding of the lecture and tutorial material. The Discussion Board is monitored by staff and students are encouraged to collaborate and engage with the discussion. Participating in these discussions will improve the ability to evaluate legal issues and problem-solve.

Strategy 2: Online learning and independent learning module

Online: Students improve their skills in evaluating legal and policy issues, problem-solving, and constructing arguments by participating in student-led discussions on UTSOnline including posing questions, answering questions and discussing research. Independent learning, self-management and the ability to give and receive feedback are essential skills in legal practice. UTSOnline is where students will access material to prepare for lectures, tutorials and participate in reflection and student-led discussion. The online learning strategies also develop the ability to collaborate and contribute to the learning of others, give and receive feedback, and to take responsibility for one’s own learning.

Independent learning module: In the first half of the semester students independently complete a self-learning module about ethics and justice. This module is intended to further develop the ethical frameworks of students through a consideration of the roles and responsibilities of lawyers in the administration of justice. A component of the module is a critical reflection about ethics and justice and engagement with another student’s reflection for the purpose of providing informal feedback (see Assessment task 1 below).

Strategy 3: Engaging in Lectures

Lectures are a key part of learning in this subject. Preparing for and attending lectures will assist students in interpreting the fundamental rules of evidence and identifying the relevant standards of admissibility. Students are encouraged to ask questions and challenge ideas during lectures. Lectures are recorded and are available for student review; however students who participate in the lecture program and take advantage of the formative feedback opportunities available in the on campus sessions usually have a richer understanding of Evidence.

Strategy 4: Problem-solving

The ability to solve problems is an essential skill in lawyering. Problem-solving involves interpreting and analysing legislation and cases; and identifying and applying the relevant standards of admissibility in resolving evidentiary issues in problem-based scenarios. In each tutorial students will practice these skills together, to improve their ability to think creatively and analytically, seeing problems from both sides of an adversarial dispute. Students will evaluate and synthesise research materials to communicate well reasoned, justifiable and logical arguments. All tutorials involve collaborative whole-of-class discussion to interpret and analyse the legislation and cases. Students will also work in small groups to identify and apply the standards of admissibility to practice resolving the kinds of evidentiary problems presented in the final exam. Formative feedback in each tutorial will respond to students’ problem solving strategies, analysis, argument and knowledge of the law.

Strategy 5: Applying Research Skills

Students undertake independent research relevant to assessment tasks and on-line discussions. Critical reading and analysis of scholarly materials for legal research and writing are important skills in law. These skills also translate into any professional context where critical, strategic and creative thinking is applied and communicated. Students engage in a critical reading exercise in Tutorial One to practice and get feedback on their skills in active reading and critical evaluation of scholarly materials. Students will collaborate on the critical reading exercise by discussing the articles and their evaluations in the tutorial and by giving feedback to another student on an aspect of that exercise. Peer feedback principles, strategies and guidelines are available in the seminar materials on UTSOnline and this will be discussed in the tutorial. This tutorial forms the basis for participation in other tutorials and communicating the outcomes of critical reading in assessment tasks. Students will also develop skills in identifying and synthesising relevant material and using it to make reasoned, justifiable and persuasive arguments.

Subject Delivery

The subject is structured around one weekly lecture (90 minutes) and one weekly tutorial (90 minutes). Students are expected to attend lectures and tutorials each week and must take responsibility for their own learning.

Content (topics)

1.Reflection on the roles and responsibilities of lawyers in the administration of justice.

2.Introduction to evidence; proof and presumptions.

3.Evidentiary issues to be addressed before trial

4.Relevance: the first threshold to the admissibility of evidence.

5.Privilege: professional relationships, sexual assault communication, legal professional privilege, immunities.

6.Documentary and real evidence: How these types of evidence can be adduced.

7.Witnesses: competence and compellability; examination of witnesses.

8. The Accused as witness: right to silence; character evidence

9.Credibility evidence: the exclusionary rule and exceptions.

10.Hearsay: the exclusionary rule; first-hand hearsay and exceptions.

11.Hearsay: the admissibility of hearsay evidence admitted for a non-hearsay purpose; admissions.

12.Opinion evidence: the exclusionary rule; non-expert and expert exceptions.

13.Tendency and coincidence evidence; the exclusionary rule and conditions for admissibility.

14.Discretionary and mandatory exclusion of evidence.

15.Judicial warnings, comments and directions about evidence

Assessment

Assessment task 1: Critical reflection about ethics and justice

Intent:

This reflection on the roles and responsibilities of lawyers in the administration of justice enables students to explore their own reactions to justice issues in the context of evidence. It also provides students with the opportunity to give and receive informal feedback from their peers.

This task is graded as Pass / Fail and is compulsory for submission of Assessment Task 2.

Objective(s):

This task addresses the following subject learning objectives:

3

This task contributes specifically to the development of the following graduate attributes:

LAW.2.0

Weight: Mandatory task that does not contribute to subject mark
Length:

400 words (2 x 200)

Criteria:
  • Identifies and evaluates personal perspectives about the roles and responsibilities of lawyers in the administration of justice.
  • Considers relevant ethical issues encountered by lawyers and evaluates their decision making processes or actions.
  • Constructively engages with the content of another student’s reflection.

Assessment task 2: Research Assignment

Intent:

This task enables you to practice research skills, analysis of legal and policy issues, and develop clear, well-reasoned and persuasive arguments.

Objective(s):

This task addresses the following subject learning objectives:

1, 3, 4 and 5

This task contributes specifically to the development of the following graduate attributes:

LAW.1.0, LAW.2.0, LAW.3.0 and LAW.4.0

Weight: 40%
Length:

2000 words

Criteria:
  • Ability to interpret, distil and explain legislation, cases, parliamentary and departmental reports, and scholarly writing.
  • Coherent and logical analysis of the factual, evidentiary and policy issues.
  • Justifiable and persuasive argument that demonstrates creative thinking about the issues.
  • Evidence of individual research that identifies relevant material.
  • Evaluates and synthesises legal and scholarly research through critically analysing the material and using it to support arguments.
  • Demonstrates judgment and responsibility in the context of academic integrity including submitting own work, and accurately and honestly referencing and acknowledging the sources of law and scholarly writing etc that assisted in the formation of ideas.
  • Written expression is clear and concise with correct use of grammar and spelling.
  • Referencing complies with the AGLC 4th ed.

Assessment task 3: Scenario-based Exam

Intent:

In this task students are assessed on their ability to apply legal knowledge and problem-solve in circumstances similar to those in which lawyers work such as solving problems under time constraints.

Objective(s):

This task addresses the following subject learning objectives:

1, 2 and 4

This task contributes specifically to the development of the following graduate attributes:

LAW.1.0 and LAW.3.0

Weight: 50%
Length:

2hr (+ 10 minutes reading time).

Criteria:
  • Correct identification of relevant factual and legal issues.
  • Applies the standards of admissibility to resolve the evidentiary issues.
  • Interprets the Evidence Act 1995 and related case law.
  • Analyses relevant statute law, case law and secondary materials to generate an argument that provides the most appropriate resolution to the problem.
  • Communicates clearly and succinctly.

Assessment task 4: Class Participation

Objective(s):

This task addresses the following subject learning objectives:

1, 2 and 3

This task contributes specifically to the development of the following graduate attributes:

LAW.3.0, LAW.4.0 and LAW.5.0

Weight: 10%
Length:

There is no required length for the written responses to the tutorial questions. However, only genuine attempts will be accepted in satisfaction of the assessment criteria.

Criteria:

Students should be able to demonstrate:

  • Preparation for classes (SLO3, GA 4.0);
  • Identification and application of standards of admissibility in evidence law with reference to legislation and case law (SLO1; GA 3.0);
  • Application of understandings of evidence law and problem solving skills to evidence law scenarios (SLO2; GA 3.0)
  • Quality of contributions to overall class and small group discussions, engagement with and response to peers and counter-arguments on their understanding of evidence law (SLO3; GA 5.0)
  • Consistency of engagement in class and small group discussion about evidence law (SLO3; GA 5.0) and
  • Capacity to listen to and show respect for the opinions of other students and to contribute to the development of a constructive learning environment (SLO3; GA 5.0)

Required texts

Students may use either of the following editions, depending upon availabilty:

  • Jeremy Gans & Andrew Palmer, Andrew Roberts, Uniform Evidence (Oxford University Press, 3rd ed, 2019)
  • Jeremy Gans & Andrew Palmer, Uniform Evidence (Oxford University Press, 2nd ed, 2014)

This text is available from the Co-Op Bookshop, or it may be purchased from the Publisher, directly. Second-hand copies of the 2nd edition may be available from students who studied Evidence in previous semesters. A limited number of books are available for loan from the Subject Coordinator for students experiencing financial hardship. An announcement will be made in the first lecture.

  • Evidence Act 1995 (NSW)

Accessible via Austlii. The NSW and Commonwealth Evidence Acts are very similar. Any relevant differences will be pointed out in lectures. Ensure that you have access to at least one of them (or, alternately, see Recommended Text, below).

Recommended texts

  • Stephen Odgers, Uniform Evidence Law (Thomson Lawbook Co. 12th ed, 2016). Currently in its 12th edition, but updated regularly. This is the key text used by all court practitioners. It is an annotated, section-by-section analysis of the Evidence Act, and it has been updated to take account of the amendments that commenced in 2009.

References

These additional texts, available in the Library, are excellent resources that can guide your research and revision:

  • Kumar M, Odgers S, Peden E, Uniform Evidence Law, Commentary and Materials ( Thomson Reuters Lawbook Co. 4th ed 2012)

This teaching and practitioner text contains commentary and materials on the Uniform Evidence law. This text has been updated to embrace the recent amendments. There are copies in the Library.

  • Heydon, Cross on Evidence (LexisNexis Butterworths, 10th Australian ed, 2014)

Another popular reference text, written by a Justice of the High Court of Australia, which contains commentary on the rules of evidence. This text has been updated to embrace the recent amendments. There are copies in the Library.

  • Gans J, Henning T, Hunter J, Warner K, Criminal Process and Human Rights (The Federation Press, 2011).

Other resources

The NSW Evidence Act is one of a collection of uniform Evidence Acts in various Australian jurisdictions. The following reports contain a wealth of research, issues, consultations and proposals, and you should consult them regularly for a deeper understanding of the issues.

  1. www.austlii.edu.au/au/other/alrc/publications/reports/102
  2. www.austlii.edu.au/au/other/alrc/publications/dp/69
  3. www.austlii.edu.au/au/other/alrc/publications/reports/38/ALRC38.html
  4. www.austlii.edu.au/au/other/alrc/publications/reports/26/