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 2025 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 70218 Criminal Law OR (70114 Criminal Law and Procedure AND 70104c Civil Practice) OR 70114 Criminal Law and Procedure )
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses. See access conditions.
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. |
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| 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. |
| 6. | Reflect on the impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact. |
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:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Ethics and Professional Responsibility
A capacity to value and promote honesty, integrity, accountability, public service and ethical standards including:
a. An understanding of approaches to ethical decision making and professional responsibility;
b. An ability to recognise, reflect upon and respond to ethical issues likely to arise in professional contexts in ways that evidence professional judgment, promote justice and serve the community; and
c. An ability to reflect on and engage constructively with diversity in practice. (LAW.2.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1) - Indigenous Professional Capability
Bachelor of Law graduates will:
Apply knowledge and skills to develop professional capabilities to work effectively with and for Indigenous peoples and communities across the law profession. (LAW.7.1)
Teaching and learning strategies
Strategy 1: Preparing for class activities
Each week, students are required to read the set learning materials, including legislation, cases, law reform reports, textbook sections and journal articles, that introduce topics that students need to engage with before each lecture and in preparation for the tutorial activities. These resources assist students in understanding the lecture topics and enable them to participate actively in the lectures and tutorials. Tutorials involve collaborative discussion for the purpose of problem solving. Students are required to complete a quiz and to consider their responses to the tutorial questions prior to the tutorials. Students can access all materials through Canvas.
Strategy 2: Independent learning activities
Students are expected to take responsibility for their own learning in preparation for participation in the tutorials. Each week, prior to the tutorial, students are required to complete a quiz to test their understanding of the previous week’s lecture and of the prescribed texts and materials (see Assessment Task 4). This assessment task assists students to participate in group discussions during tutorials. In addition, prior to each tutorial, students are required to consider a series of scenario-based questions and discussion problems involving a set of facts and evidentiary issues. During tutorials, students are encouraged to present and defend their own views and interpretations of evidence law.
In the first half of the semester students independently complete a self-learning module about the role of race in Anglo-Australian law, based on a selected material (book, documentary film or podcast). This assessment task is intended to develop legal knowledge and understanding of the impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact. A component of the assessment task is engagement with another student’s reflection for the purpose of providing informal feedback (see Assessment Task 1).
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 Canvas 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
- Lectures will be delivered in person on campus at the scheduled time. An audio recording and power point presentation will be made available afterwards on Canvas.
- Most tutorials will be held face-to-face on campus. At least two tutorials will be held online, with enrolment on a first-in-line basis.
Content (topics)
- Reflection on the role of race in Anglo-Australian law and the impact of colonisation on Indigenous peoples
- Introduction to evidence; proof and presumptions
- Types of evidence: Documents and other evidence
- Witnesses: competence and compellability; examination of witnesses
- The accused as witness; admissions; the right to silence
- Relevance: the first threshold to the admissibility of evidence
- Hearsay: the exclusionary rule; first-hand hearsay and exceptions
- Credibility evidence: the exclusionary rule and exceptions
- Hearsay: the admissibility of hearsay evidence admitted for a non-hearsay purpose; character evidence
- Opinion evidence: the exclusionary rule; exceptions
- Tendency and coincidence evidence: exclusionary rules and exceptions
- Discretionary and mandatory exclusion of evidence; judicial warnings, comments and directions
- Privilege: client legal privilege, professional confidential relationships privilege, sexual assault communication privilege, privilege against self-incrimination; public immunities
Assessment
Assessment task 1: Critical reflection about the role of race in Anglo-Australian law
| Intent: | The aim of Assessment Task 1 is to encourage students to reflect on the role of race in Anglo-Australian law and the impact of colonisation on First Nations people. It is intended to assist non-Indigenous students to develop understanding and respect for Indigenous knowledges by reflecting on First Nations peoples’ experiences of historical and ongoing racism. First Nations students are encouraged to draw on their own knowledge in the reflection. The task 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. |
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| Objective(s): | This task addresses the following subject learning objectives: 3 and 6 This task contributes specifically to the development of the following graduate attributes: LAW.2.1 and LAW.7.1 |
| Weight: | Mandatory task that does not contribute to subject mark |
| Length: | 400 words (2 x 200) |
| Criteria: |
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Assessment task 2: Pre-tutorial quizzes
| 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.3.1, LAW.4.1 and LAW.5.1 |
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| Weight: | 10% |
| Criteria: | Students should be able to demonstrate:
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Assessment task 3: 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. |
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| 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.1.1, LAW.2.1 and LAW.3.1 |
| Weight: | 40% |
| Length: | 2000 words |
| Criteria: |
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Assessment task 4: 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. |
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| Objective(s): | This task addresses the following subject learning objectives: 1 and 3 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.2.1 and LAW.4.1 |
| Weight: | 50% |
| Length: | 2-hour exam within a 3-hour window. There is a word limit of 2000 words (+ or - 10%) |
| Criteria: |
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Required texts
Students are required to have access to a copy of the Evidence Act 1995 (NSW). We will be using the Act in every class. The Act is freely available.
- Evidence Act 1995 (NSW)
Accessible via Legislation NSW https://legislation.nsw.gov.au or Austlii http://www.austlii.edu.au.
The NSW and Commonwealth Evidence Acts are very similar. Any relevant differences will be pointed out in lectures.
Students should also have access to a current edition of an Evidence textbook. There is no prescribed text but you should ensure that the text that you use is no more than five years old and covers the uniform evidence laws. You are welcome to use second-hand books or books taught in other NSW law schools. If you are not sure, ask the Coordinator.
In the recent past, Evidence students have used Gans & Palmer (details below) and this book is fine, if you wish you buy or borrow it. This is referred to in the weekly reading materials as "Text", with chapter or page references provided. If you are using a different book, ensure you are reading about the correct topic.
- Jeremy Gans, Andrew Palmer, Andrew Roberts, Uniform Evidence (Oxford University Press, 3rd ed, 2019)
This text may be purchased from the Publisher, Oxford University Press, in paperback, e-book and e-book rental (6 month licence): https://www.oup.com.au/. Copies are also available in the UTS Library in the Open Collection, Reserve and as an e-book that can be read or downloaded online. Second-hand copies may be available from students who studied Evidence in previous semesters.
Recommended texts
- Stephen Odgers, Uniform Evidence Law (Thomson Lawbook Co. 17th ed, 2022). This is the key text used by all court practitioners. It is an annotated, section-by-section analysis of the Evidence Act. The UTS Library has an electronic subscription to this book. Students can access it free via the Library catalogue.
References
These additional texts, available in the Library, are also resources that can guide your research and revision:
- Bellew G, Arthur JK, Boas G and Chifflet P Australian Uniform Evidence Law (LexisNexis Butterworths, 2019)
- Hunter J, Henning T, et al The Trial: Principles, Process and Evidence (The Federation Press, 2015)
- Kumar M, Odgers S, Peden E, Uniform Evidence Law ( Thomson Reuters Lawbook Co. 4th ed, 2012). This teaching and practitioner text contains commentary and materials on the Uniform Evidence law. There are copies in the Library.
- Heydon, Cross on Evidence (LexisNexis Butterworths, 11th Australian ed, 2017). Another popular reference text, written by a Justice of the High Court of Australia, which contains commentary on the rules of evidence. 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.
- Australian Law Reform Commission, Victorian Law Reform Commission and NSW Law Reform Commission, Uniform Evidence Law (ALRC Report 102 [2005], NSWLRC Report 112, VLRC Final Report, 2006), available via:http://www.austlii.edu.au/cgi-bin/viewdoc/au/other/lawreform/ALRC/2005/102.html
- Australian Law Reform Commission, Victorian Law Reform Commission and NSW Law Reform Commission, Review of the Uniform Evidence Acts (ALRC Discussion Paper 69, NSWLRC Discussion Paper 47, VLRC Discussion Paper, 2005), available via: http://www.austlii.edu.au/cgi-bin/viewdoc/au/other/lawreform/ALRCDP//2005/69.html