Course Title: Law of evidence

Part B: Course Detail

Teaching Period: Term1 2013

Course Code: LAW5186

Course Title: Law of evidence

School: 650T TAFE Business

Campus: City Campus

Program: C6106 - Advanced Diploma of Legal Practice

Course Contact : Doug Gourlay

Course Contact Phone: +61 3 9925 5944

Course Contact Email:doug.gourlay@rmit.edu.au


Name and Contact Details of All Other Relevant Staff

  John Marshall will take groups LP2A and LP2B for both lectures and tutorials.

Nominal Hours: 51

Regardless of the mode of delivery, represent a guide to the relative teaching time and student effort required to successfully achieve a particular competency/module. This may include not only scheduled classes or workplace visits but also the amount of effort required to undertake, evaluate and complete all assessment requirements, including any non-classroom activities.

Pre-requisites and Co-requisites

Pre-requisites:  VU20111 Legal Process

Course Description

To provide learners with detailed knowledge and skills in the rules of evidence and procedure as they apply to civil and criminal trials as might be relevant to a person working in a legal office, an insurance company or associated fields in the public or corporate sectors. Knowledge of the rules of evidence will enable analysis and evaluation of evidence available in connection with the preparation of a case for trial.


National Codes, Titles, Elements and Performance Criteria

National Element Code & Title:

VU20110 Law of evidence


Learning Outcomes


Upon successful completion of the course you will be able to:

Learning Outcome 1 - Analyse and define the concept and general nature of evidence, and illustrate the different types of evidence and court procedures relating to evidence.
Assessment criteria
1.1 Define the term ‘evidence’ and illustrate its general nature.
1.2 Analyse the different types of evidence with reference to:
• real
• oral
• direct
• circumstantial
• original
• hearsay
• primary
• secondary
• documentary.
1.3 Validate the rationale behind the rules and court procedures dealing with evidence.
1.4 Define and assess a “no case to answer” submission to the court and examine the grounds of making such a submission with reference to:
• a “no case to answer” submission in a criminal case
• a “no case to answer” submission in a civil case
• election in civil cases.

Learning Outcome 2 - Determine and analyse the standard of proof and burden of proof in civil and criminal cases, and specify types of presumptions.
Assessment criteria
2.1 Specify the standard of proof in civil and criminal cases.
2.2 Specify the standard of proof applicable to determining the admissibility of evidence
2.3 Establish the importance of the burden of proof in civil and criminal cases.
2.4 Analyse an area of substantive law and identify its elements, facts in issue and possible defences.
2.5 Determine types of presumptions and their effect.
2.6 Determine and locate examples of facts that do not have to be proved.

Learning Outcome 3 - Analyse the rule relating to relevance of evidence.
Assessment criteria
3.1 Analyse the concept of relevance of evidence in relation to facts in issue and credit.
3.2 Identify appropriate test of relevance,
3.3 Identify and compare evidence that is directly and indirectly relevant
3.4 Identify the relevant rules relating to:
• Relevance
• Provisional relevance
• Inferences to relevance

Learning Outcome 4 - Analyse and evaluate the rules governing examination in chief, cross examination and re-examination, and establish the procedures in the conduct of a civil or criminal trial.
Assessment criteria
4.1 Evaluate the rules in relation to examination in chief.
4.2 Analyse and evaluate the rules of cross examination.
4.3 Evaluate and apply the concept and rules of re-examination in relation to the purpose and restrictions on questions that may be asked
4.4 Identify the circumstances in which evidence is permitted to be used in rebuttal.
4.5 Define the term ‘Voire Dire’, stipulating its purpose and the procedure involved.

Learning Outcome 5 - Determine the rules relating to competence and compellability of witnesses in relation to case study material.
Assessment criteria
5.1 Define the terms competence and compellable and distinguish a competent witness from a compellable witness.
5.2 Determine those persons who may not be competent and compellable witnesses.
5.3 Define and determine privileges that may exempt a person from answering questions.

Learning Outcome 6 - Analyse, evaluate and assess the framework of statutory and common law rules which provide the basis for evidence to be excluded.
Assessment criteria
6.1 Evaluate the rule against hearsay and determine its exceptions with reference to:
• First-hand hearsay
• Business records
• Electronic communications
• Aboriginal and Torres Strait Islander traditional laws and customs
• Reputation
• Interlocutory proceedings.
6.2 Assess the rule excluding opinion evidence and determine exceptions to the rule in relation to:
• Evidence relevant for a purpose other than as opinion evidence
• Lay opinions
• Expert opinions – opinions based on specialised knowledge
• Aboriginal and Torres Strait Islander traditional laws and customs.
6.3 Determine and assess the rules of evidence relating to admissions with reference to:
• Exclusion of evidence of admissions
• Reliability of admissions by defendants
• Admissions made with authority
• Proof of admissions
• Evidence of silence.
6.4 Determine admissibility of evidence of judgments and convictions.
6.5 Determine and assess the admissibility of evidence relating to tendency and coincidence.
6.6 Analyse the concept of credibility of a witness with reference to:
• Admissibility of evidence as to credibility
• Examination and cross-examination of witnesses
• Credibility of persons who are not witnesses
• Persons with specialised knowledge.
6.7 Determine and assess the rules of evidence relating to the character of an accused person with reference to:
• Character in the context of the rules of evidence
• Relevance of character evidence
• Similar fact exception rule
• Evidence about character of the accused and co-accused
• Cross-examination of character of accused or co-accused.
6.8 Analyse and assess the admissibility of identification, evidence in a criminal trial.
6.9 Evaluate and assess the nature and context of privileges in relation to evidence.
6.10 Assess the nature of judicial discretion to exclude evidence including and with reference to:
• General discretion to limit or exclude
• Prejudicial evidence in criminal proceedings
• Improperly obtained evidence
• Cautioning of suspected offenders.

Learning Outcome 7 - Assess and determine the circumstances under which a trial judge may give warnings to a jury.
Assessment Criteria
7.1 Assess and evaluate the reasons why a warning may be given to a jury.
7.2 Identify the effect of the Evidence Act 2008 on corroboration warnings.
7.3 Assess under what circumstances a judge may still give a corroboration warning.

Learning Outcome 8 - Determine and evaluate the main considerations to be exercised by a legal practitioner when preparing a case for trial.
Assessment criteria
8.1 Determine the fundamentals in the preparation of a case.
8.2 Specify the important elements in the gathering of proof of evidence with reference to:
• collection
• form
• content.
8.3 Evaluate the process in compelling the production of evidence.
8.4 Determine the process involved in the tendering of types of evidence in relation to:
• documents
• photographs
• maps and plans
• real evidence
• views.
8.5 Demonstrate and evaluate opening and closing addresses, including their purpose and content.

Learning Outcome 9 - Determine and evaluate the structure and provisions of the Evidence Act 2008 (Vic) and its relationship with the Evidence Act 1995 (Cth).
Assessment criteria
9.1 Trace the history of Uniform Evidence Legislation.
9.2 Assess the objectives and justification for the introduction of the Evidence Act 2008 (Vic).


Details of Learning Activities

Students will study Law of Evidence theory and skills in class sessions and through prescribed exercises and assessment work. The concepts will also be explored through the investigation of appropriate real world and simulated environments.


Teaching Schedule

 

 WeekTopicAssessment
 Week 1 – 11 Feb What is the Law of Evidence? 10% participation over semester
 Week 2 – 18 Feb Convincing the court 
 Week 3 – 25 Feb Presentation of a case and "no case to answer" 
 Week 4 – 4 March
 Examination in chief 
 Week 5 – 11 March
 Cross-examination and re-examination 
 Week 6 – 18 Mar Competence and compellability of witnessesMon public holiday (Labour Day)
 Week 7 – 25 Mar Relevance and the rule against hearsay 
 28 March- 3 April
 Student vacation 40% Open book ( 2 hours)
 Week 8 – 8 April First test 
 Week 9 – 15 AprilExceptions to the hearsay rule - admissions and confessions 
 Week 10 – 22 April Exceptions to the hearsay rule ( cont.) 
 Week 11 – 29 April Opinion evidence 
 Week 12 –6 May Evidence of Character 
 Week 13 – 13 May Evidence of Character 
 Week 14 – 20 May Corroboration and Preparation of a Case 
 Week 15 – 27 MayReview 
 Week 16 – 3 June
 Final ExamFinal Exam (2.0 hours –
open book) 50%
 Week 17 – 10 June Deferred assessment and student consultations (FT students - Practical placement) (Mon public holiday)
 Week 18 – 17 June Student feedback and review of assessment (FT students - Practical placement) 


Learning Resources

Prescribed Texts

Uniform Evidence Law, Odgers, S.  9th edition, Thompson Reuter, and/or

Evidence, Nutshell Series Third Edition, R B Wilson. Thomson Reuters


References

Uniform Evidence Law, Anderson & Bayne, 2nd Edition. Federation Press


Other Resources

Legislation (all Acts available online)

Crimes Act 1958 (Vic)
Evidence Act 1958 (Vic)
Evidence Act 2008 (Vic)
Evidence Act 1995 (Cth)
Juries Act 2000 (Vic)

Online Resources

Australian Law Reports
Victorian Law Reports
Cross on Evidence on LexisNexis AU
(http://www.lexisnexis.com/au/legal) Access via the RMIT library Search it page (http://www.rmit.edu.au/library/searchit)
Austlii (http://www.austlii.edu.au)
Victorian Law Today (http://www.legislation.vic.gov.au)
 


Overview of Assessment

Assessment methods have been designed to measure achievement of the requirements in a flexible manner over a range of assessment tasks, such as: 

• Practical exercise
• Written tests
• Written assignment
• Case study analysis
• Final examination

Students are advised that they are likely to personally demonstrate their assessment work to their teacher to ensure that the relevant competency standards are being met. Students will be provided with feedback throughout the course to check their progress.


Assessment Tasks

Class Participation (10%)
Students will be assigned tutorial questions to be presented to the class on weekly basis. Questions for the whole semester are available under weekly headings on the learning hub and will be made available in class. In tutorials, after individual efforts to prepare answers away from formal classes, students will often be working in small groups to present their answers for each tutorial question. Students will be graded according to the quality of the answer.

Test 1 - 40% open book. (2.0 hours –The Open book test will be conducted during Lecture in week 8 under examination conditions. This test will be OPEN BOOK format and covers weeks 1,2, 3, 4 and 5 and 6. It will comprise short answer, problem solving and case study questions. open book)

Final Exam
 50%Final Exam (50%)
The Final Examination will comprise a two hour written examination. This is conducted during the formal examination period and will be an OPEN BOOK examination. The exam covers mainly weeks 7 to 16 but will also overlap earlier materials. It will comprise short answer, problem solving and case study questions. Essay style answers are required and appropriate English language skills will form part of the assessment.
In open book exams, candidates may take into the examination room any written or printed material or books (including any dictionaries). However, NO electronic devices such as mobile phones, laptop computers, I pads, MP3players, electronic dictionaries etc are permitted to be taken into the exam room.
Please note that deferred tests will not be granted automatically. If you are unwell or for some other reason have difficulty attending at your allocated test or exam time, you should contact the Special Consideration Unit.
You must bring a photo ID to the exams. If you present for the test without a photo ID you will be required to sign a declaration and later confirm your identity with the lecturer-in-charge (by appointment). Failure to do this will result in a zero mark for the test


Assessment Matrix

 Learning Outcomes <font size="2">Participation</font> Test 1 Final Test
 1.  Analyse and define the concept and general nature of evidence, and illustrate the different types of evidence and court procedures relating to evidence. X X X
 2.  Determine and analyse the standard of proof and burden of proof in civil and criminal cases, and specify types of presumptions. X X X
 3.  Define and assess a ’no case to answer’ submission to the court and examine the grounds of making such a submission. X X X
 4.  Analyse and evaluate the rules governing examination in chief, cross examination and re-examination, and establish the procedures in the conduct of a civil or criminal trial. X   X
 5.  Analyse the rule relating to relevance of evidence. X X X
 6.  Identify hearsay evidence and determine the rule excluding hearsay evidence and the exceptions to that rule. X X X
 7.  Determine the rules relating to competence and compellability of witnesses in relation to case study material. X  X
 8.  Determine the rule excluding opinion evidence as applied to case studies. X  X
 9.  Determine and assess the rules of evidence relating to the character of an accused person in relation to case study material. X  X
 10.  Assess and determine the circumstance under which corroborating evidence is required. X  X
 11.  Determine and evaluate the main considerations to be exercised by a legal practitioner when preparing a case for trial. X  X
 
   

Other Information

The complete syllabus for the Law of Evidence is on the course site on the RMIT Learning Hub at http://www.rmit.edu.au/learninghub  Please refer to it for details of the learning outcomes and assessment criteria.

Assignment Submission Procedure
All assignments must be submitted online through the course Blackboard. They must be accompanied by an assignment cover sheet and submitted though Tunitin, a plagiarism checking tool. For information on Turnitin see;
Student FAQ, http://www.rmit.edu.au/academicintegrity/studentfaq
Student procedures and account setup (pdf), http://www.rmit.edu.au/academicintegrity/studentprocedures
Turnitin student information page, https://www.turnitin.com/static/training/student.php
Turnitin will assess your work in approximately one minute, and return a colour coded response for the originality of the text.
Penalties for late submission
All assignments will be marked as if submitted on time but the mark awarded will be reduced by 10% for each day (or part of a day) it is late
Assignments that are late by 7 days or more will not be marked and will be awarded zero marks

Marking Criteria
Unless otherwise advised by teaching staff, grades for written work will be awarded on the following basis:
Fail (NN):
The submitted/presented work does not meet the criteria set for the negotiated tasks
Pass (PA) 50-59%:
The submitted/presented work meets the criteria provided set for the negotiated tasks including compliance with academic conventions concerning the proper acknowledgment of information sources (including page numbers) and an awareness of relevant substantive issues. This includes clear evidence of wide reading and comprehension of substantive issues.
Credit (CR) 60-69%:
In addition to satisfying the conditions for a pass, the submitted/presented work shows evidence of the ability to engage in complex qualitative research, sensitivity to and understanding of the substantive area and its significance, the ability to comprehend relevant theoretical ideas, and a thorough appreciation of contemporary literature relevant to the chosen topic area.
Distinction (DI) 70-79%:
In addition to satisfying the conditions for a credit, the submitted/presented work shows perceptive analysis of relevant material beyond that covered in the class, the ability to engage in complex qualitative research, and applies extensive and relevant professional and theoretical reading critically in its discussion. The submitted/presented work presents a convincing and logically constructed argument that is cogent and coherent. Further, commentaries on published academic works or summaries thereof are kept to a minimum.
High Distinction (HD) 80%:
In addition to satisfying the conditions for a distinction, the submitted/ presented work shows evidence of high order critical analysis and insightful use of wide and relevant theoretical reading as well as thorough attention to preparation, and presentation. The submitted/presented work demonstrates the capacity to argue independently of relevant published academic work without abandoning the requirement to acknowledge all sources of information and opinion.
Changes to assessment scheme. Changes to the method of assessment described above may be made with the documented consent of 70% of students enrolled in the course. Students will receive written notification of any such changes.
Borderline policy
All borderline fail assignments and examination papers will be marked by a second examiner. Assessment within 5% of the pass mark is considered to be borderline for this purpose. Students who are dissatisfied with their assessment outcomes have the right to clarification from the School of how their assessment was determined

Feedback
Feedback will be provided throughout the semester in class and/or online discussions. Individual and group feedback on specified learning activities and by individual consultation as required. You are encouraged to ask and answer questions during the lecture and tutorials so that you can obtain feedback on your understanding of the concepts and issues being discussed. Finally, you can email your tutor or arrange an appointment with the lecturer to gain more feedback on your progress. You should take note of all feedback received and use this information to improve your learning outcomes and final performance in the course.

Written Reports and Essays:
Students should consult the Guidelines for Referencing and Presentation in RMIT Business. This document is the standard RMIT Business reference for Higher Education and TAFE students.
In addition to these resources, RMIT provides academic skills support and resources through the Study and Learning Centre (https://www.dlsweb.rmit.edu.au/lsu/ ) and the library (http://www.rmit.edu.au/library ).

Other Relevant Information
Amongst other services provided to students at RMIT, students may seek assistance from the Study and Learning Centre and the Student Learning Advisor Mentors(SLAMS) .
Plagiarism
Plagiarism is defined (RMIT University 2003a) as stealing somebody’s intellectual property (IP) by presenting their work, thoughts or ideas as though they are your own. It is cheating. It is a serious academic offence and can lead to expulsion from RMIT. Plagiarised material can be drawn from, and presented in, written, graphic and visual form, including electronic data, and oral presentations. Plagiarism occurs when the origin of the material used is not appropriately cited.
Examples of plagiarism include:
• Copying sentences or paragraphs word-for-word from one or more sources, whether published or unpublished, which could include but is not limited to books, journals, reports, theses, websites, conference papers, course notes, etc. without proper citation;
• Closely paraphrasing sentences, paragraphs, ideas or themes without proper citation;
• Piecing together text from one or more sources and adding only linking sentences;
• Copying or submitting whole or parts of computer files without acknowledging their source;
• Copying designs or works of art and submitting them as your original work;
• Copying a whole or any part of another student’s work;
• Submitting work as your own that someone else has done for you; and
• Enabling plagiarism: the act of assisting or allowing another person to plagiarise or to copy your own work.
Advice and activities are available to help you cite and quote your sources correctly, and avoid plagiarism, see for example
http://www.dlsweb.rmit.edu.au/lsu/content/1_StudySkills/02referencing.htm
Further information on academic integrity:
http://www.rmit.edu.au/academicintegrity
You may apply for Special Consideration if you believe that your academic performance has
been severely affected by illness or other serious cause outside your control. This is done by
submitting a Special Consideration form with documentary evidence at the Student Hub no
later than 48 hours after the due date or scheduled assessment. Students will be notified via
their student email account of the outcome of the application, which, if approved, can include
alternative assessment or an extension of time. Please note that if a student applies for special consideration after an assessment has been attempted or submitted, and the student is permitted a supplementary assessment, the result of the subsitiuted assessment will apply and the earlier result will be disregarded. This policy applies irrespective of which result is the higher result.

The RMIT Special Consideration in Assessment policy:
http://www.rmit.edu.au/students/specialconsideration
Further advice on Special Consideration:
http://www.rmit.edu.au/students/policies/hecoursework and
http://www.su.rmit.edu.au/rights/specconsid.html.
 

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