Evidence law governs the use of proof in legal proceedings and answers important questions like: How much proof is enough? What will the jury be allowed to hear? And what kinds of proof can be used? Evidence law is also a major component of trial procedure, governing how proof is presented in a trial. The law of evidence regulates the emergence of the parties’ narratives; and decisions about evidentiary issues frequently determine which version of events is believed, what is considered ‘fact’ and what is not. Liberty, property, livelihoods and families can hang in the balance.

Understanding the law of evidence is integral to understanding the trial process and the development of all areas of substantive law. Evidence law is the lens through which the legal system views the “facts” of a case. Understanding how a record of evidence is developed will give you new insight into litigation processes and appellate decisions. It will also give you a new perspective on the adversarial system and the importance of advocacy. If you become a litigator or barrister someday, evidence law will be your bread and butter. If you never become a litigator, you will need to know evidence law in order to make appropriate decisions for clients who are not in litigation. Protecting your clients’ rights outside litigation may depend on your knowledge about what might be admissible if litigation were eventually employed. Even if you leave law and go into business or another field, understanding evidence will give you a new perspective on the nightly news.

This course is an introduction to the law of evidence. It covers important aspects of proof, admissibility, fact-finding, and the standards and procedures that are applied in legal proceedings. While it would be possible (and fascinating) to take a philosophical approach to evidence issues, this course takes a practical approach. It will require you to participate in discussion, present arguments, think on your feet, and make strategic decisions. You should leave the course with fluency in Uniform Evidence Law and with a strong understanding of the principles that undergird the rules of evidence and trial procedure in common law systems. 

This course meets the requirements of the Law Admissions Consultative Committee Prescribed Academic Areas of Knowledge for Evidence. 

Learning Outcomes

Upon successful completion, students will have the knowledge and skills to:

1. Synthesise and evaluate the rules of evidence, evidentiary standards, substantive law, principles of statutory construction, and policy considerations, to design and justify solutions to complex evidentiary problems.
2. Review and reflect on rules and contemporary developments in evidence, and the strengths and weaknesses of the adversarial system of trial, with reference to its broader social and ethical context and a range of diverse perspectives.
3. Evaluate and reflect on their own professional capability and development in the context of court procedure in a trial.
4. Research and evaluate a range of legally specific research principles, methods, primary legal resources, and evidentiary standards, in order to propose solutions to complex evidentiary problems.
5. Review and synthesise a brief of evidence, evaluate the admissibility of evidence contained and develop and communicate a persuasive argument about the prospects of proof.

Research-Led Teaching

This course was designed to incorporate as much experiential learning as possible. The centrepiece of the course is a semester-long trial that progresses witness by witness in tutorials. Students will take to their feet in this trial as counsel for the prosecution or defence, and participate as witnesses and court officers. The model engages students with the practical process of proof, supporting the acquisition and application of theoretical content provided in lectures and from case and textbook readings. Assessments are designed to simulate the tasks required of a trial lawyer, so far as possible. Links between theory and practice will be made explicit throughout. The fundamental premise for the course is that the rules of evidence are best understood in a practical context, and that ‘in role’ student engagement fosters a capacity for critique and challenge, as the complexities and shortcomings of the adversarial trial process are directly revealed.

The teaching approach has been the subject of publication, as seen in:

• Anderson, John and Anthony Hopkins, Uniform Evidence Law Guidebook (Oxford University Press, 2014); and
• Hopkins, Anthony, 'Teaching Evidence Law within the Framework of a Trial: Relating Theory to Practice as Students Take to Their Feet and Take Responsibility for the Trial Narrative’ (2009) 2(1&2) Journal of the Australasian Law Teachers Association 173.

Required Resources

Kumar, Miiko, Elisabeth Peden and Daniel Tynan, Uniform Evidence Law: Commentary and Materials (Thomson Reuters, 7th ed, 2023). Guidance will also be provided for any students using the 6th edition of this text. A full list of readings will be made available on Wattle two weeks prior to the course commencement date.

Recommended Resources

Podcast

• Cheng and Nunn, Excited Utterance https://excitedutterance.com/listen>. – This is an excellent podcast about evidence law.

Articles

• Chin, Edmond, and Roberts, ‘Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law’ (2022) Federal Law Review.
• Dufraimont, ‘Evidence Law and the Jury: A Reassessment’ (2008) McGill Law Journal.

Books

• Dahlman, Stein, and Tuzet, Philosophical Foundations of Evidence Law (2021) Oxford.
• Gans, Palmer, and Roberts, Uniform Evidence (3rd ed. 2019) Oxford.
• Hum, Urbas, and Quirico, Australian Uniform Evidence Law (2nd ed. 2022) Cambridge.
• Hunter, Metzger, Henning et al, The Trial (2nd ed. 2021) Federation. – Provides critical perspectives and context on evidence law.
• Odgers, Uniform Evidence Law (17th ed. 2022) Thomson Reuters. Book and/or eBook. – Heavily used by practitioners.
• Roberts and Zuckerman, Criminal Evidence (2nd ed. 2022) Oxford. – Helpful theoretical and doctrinal account focused on England and Wales.
• Saks and Spellman, The Psychological Foundations of Evidence Law (2016) NYU.
• Twining, Theories of Evidence: Bentham and Wigmore (1985) Weidenfeld and Nicolson. – A leading theoretical account of evidence law.

Staff Feedback

Students will be given feedback in the following forms in this course:

• written comments
• verbal comments
• feedback to whole class, groups, individuals, focus group etc
• via rubric

Student Feedback

ANU is committed to the demonstration of educational excellence and regularly seeks feedback from students. Students are encouraged to offer feedback directly to their Course Convener or through their College and Course representatives (if applicable). Feedback can also be provided to Course Conveners and teachers via the Student Experience of Learning & Teaching (SELT) feedback program. SELT surveys are confidential and also provide the Colleges and ANU Executive with opportunities to recognise excellent teaching, and opportunities for improvement.

Other Information

Task submission times refer to Canberra time (AEST/AEDT).

Extensions, late submission and penalties: https://law.anu.edu.au/current-students/policies-procedures/extensions-late-submission-and-penalties

Deferred examination: http://www.anu.edu.au/students/program-administration/assessments-exams/deferred-examinations

Word length and excess word penalties: https://law.anu.edu.au/current-students/policies-procedures/word-length-and-excess-word-penalties

Further information about the course: is available from the course Wattle page. Students are required to access the Wattle site regularly throughout the course for any announcements relating to the course.

Class Schedule

Week/Session	Summary of Activities	Assessment
1	Introduction: Purposes of Evidence Rules, Standard of Proof, Judicial Notice, Overview of the Evidence Act(s), Relevance
2	Presenting Evidence: Witness Competence, Compellability and Examination.
3	Presenting Evidence (cont): Documents and Real Evidence, Relevance, Discretions & Warnings	Tutorial 1: Role allocation & preparation for witness examination
4	Privileges, Unfavourable Witnesses, Prior Inconsistent Statements	Tutorial 2:W: Sammy Teller: Relevance, Discretions and Documents
5	Hearsay Evidence	Tutorial 3:W: Trevor Gangland: Unfavourable witnesses and prior inconsistent statements
6	Hearsay Exceptions	Tutorial 4:W: Const. Busta Badguy: Hearsay
7	Admissions, Judgments and Convictions	Tutorial 5:W: Iya Heardim: Hearsay Exceptions
8	Opinion Evidence	Tutorial 6:W: Judy Dredd: Admissions and Discretions
9	Tendency and Coincidence	Tutorial 7:W: Dr Reeba Science: Opinion Evidence
10	Credibility and Character	Tutorial 8:W: Jill Ted: Tendency and Coincidence
11	Identification, Discretions and Warnings	Tutorial 9:W: Johnny Parkbench: Credibility Evidence
12	Revision & Exam Preparation	Tutorial 10:W: Dolores Davidson: Identification, Discretions and Warnings

Tutorial Registration

ANU utilises MyTimetable to enable students to view the timetable for their enrolled courses, browse, then self-allocate to small teaching activities / tutorials so they can better plan their time. Find out more on the Timetable webpage.

Assessment Summary

Assessment task	Value	Due Date	Return of assessment	Learning Outcomes
Appearance as Counsel	10 %	*	*	1,2,3,4,5
Mid-semester Multiple-choice Assessment	20 %	04/09/2023	22/09/2023	1,4
Final Examination	70 %	*	*	1,2,4,5
Tutorial Attendance	0 %	*	*	1,2,3,4,5

* If the Due Date and Return of Assessment date are blank, see the Assessment Tab for specific Assessment Task details

Policies

ANU has educational policies, procedures and guidelines , which are designed to ensure that staff and students are aware of the University’s academic standards, and implement them. Students are expected to have read the Academic Integrity Rule before the commencement of their course. Other key policies and guidelines include:

• Academic Integrity Policy and Procedure
• Student Assessment (Coursework) Policy and Procedure
• Special Assessment Consideration Guideline and General Information 
• Student Surveys and Evaluations
• Deferred Examinations
• Student Complaint Resolution Policy and Procedure
• Code of practice for teaching and learning

Assessment Requirements

The ANU is using Turnitin to enhance student citation and referencing techniques, and to assess assignment submissions as a component of the University's approach to managing Academic Integrity. For additional information regarding Turnitin please visit the Academic Skills website. In rare cases where online submission using Turnitin software is not technically possible; or where not using Turnitin software has been justified by the Course Convener and approved by the Associate Dean (Education) on the basis of the teaching model being employed; students shall submit assessment online via ‘Wattle’ outside of Turnitin, or failing that in hard copy, or through a combination of submission methods as approved by the Associate Dean (Education). The submission method is detailed below.

Moderation of Assessment

Marks that are allocated during Semester are to be considered provisional until formalised by the College examiners meeting at the end of each Semester. If appropriate, some moderation of marks might be applied prior to final results being released.

Participation

Effective participation in this course requires around 2-4 hours of reading and preparation for tutorials and lectures each week. The appearance as counsel, mid-semester and final exams will require additional preparation time.

For all courses taught in any mode (whether face to face or online), the ANU College of Law considers participation in the classes offered to be an important part of the educational experience of the program. Students are expected to attend all classes.

Examination(s)

Examinations are held during the University's examination period. Students should consult the exam timetable when it has been finalised.

Assessment Task 1

Appearance as Counsel

Details of Task: The Appearance as Counsel assessment will take place in tutorials. Each student is required to appear as counsel for the prosecution or counsel for the defence in the trial of James Swifty. Students will be allocated a week for appearance as either prosecution or defence when they attend for the first tutorial, after indicating their preference. Student counsel will be required to question a witness, make and answer objections, as well as make and respond to submissions or applications as the exercise requires.

Nature of Task: Compulsory and non-redeemable. Failure to submit this assessment will result in a mark of zero for this assessment task.

Weighting: 10%

Release: Witness statements and instructions will be made available from the first week of semester.

Due Date: At each student's assigned tutorial. Due to the nature of the task, late submission or extension is not permitted.

Estimated Return Date: Within two weeks of the assigned tutorial, in the form of a rubric and written feedback directly from the tutor (which will supplement oral feedback given at the time of the appearance).

Assessment Criteria: An assessment rubric and details of this assessment task will be made available on Wattle:

• Organisation, presentation and manner;
• Witness examination (Including objections and responses to objections); and
• Submissions and responses to questions from the bench.

Assessment Task 2

Mid-semester Multiple-choice Assessment

Details of Task: The online mid-semester assessment will cover all course content up to and including Week 6 lecture material and reading. The assessment will be completed online via the Wattle site and will require students to answer multiple choice questions. There will be no choice of questions. Students must complete the assessment individually and have no contact with other students, or other people, during the assessment. Students are reminded that collusion is a breach of the Academic Misconduct Rule 2015. Any instances of collusion may be the subject of misconduct proceedings with significant consequences for the students.

Nature of Task: Compulsory and non-redeemable. Failure to submit this assessment will result in a mark of zero for this assessment task.

Weighting: 20%

Release: 2pm, 4 September 2023

Duration: 1 hour and 15 minutes. There is no separate reading time.

Due Date: 3.15 pm, 4 September 2023. If you experience extenuating circumstances and cannot attempt the assessment by the due date and time, you should apply for an extension here. The College will give you one final opportunity to complete the assessment, at the same time one week later. If you have already accessed the assessment, you will not be approved an extension and will need to complete the task by the due date.

Estimated Return Date: 22 September 2023

Assessment Criteria:

• Understanding of the practical process of proof;
• Understanding of the operation of rules of evidence;
• Capacity to apply rules of evidence to factual scenarios to resolve questions of admissibility; and
• Capacity to consider and critique the rules of evidence and the strengths and weaknesses of the adversarial system of trial.

Assessment Task 3

Final Examination

Details of Task: The final exam covers all course content. It will provide an opportunity for students to demonstrate their capacity to analyse a fresh brief of evidence, consider the admissibility of evidence contained and draw a conclusion about the prospects of proof. The process of analysis required will be modelled on the process of analysis students are expected to undertake in tutorials in the semester-long trial. There will be no choice of questions.

Nature of Task: Compulsory and non-redeemable. Failure to sit the exam will result in a mark of zero for this task.

Weighting: 70%

Exam Time, Date and Duration: The exam will take place during the end-of-semester exam period. Students should consult the ANU Examination Timetable closer to the examination period to confirm the final time, date and duration of the examination. Because this is a formal examination, late submissions will not be accepted. 

If you experience extenuating circumstances and are unable to sit the examination at its scheduled time and date, you should submit an Extenuating Circumstances Application (ECA), via ISIS, within five working days of the original date of the examination. Your application will be processed by the Examinations Office. If it is approved, they will notify you, via email, of the details of your deferred examination which will be held during the first week of the following semester.

Submission Requirements: Your submission must be made in a word processing file format (.doc, .docx). PDF files will not be accepted.

Estimated Return Date: Official end-of-semester results release date.

Assessment Criteria: An assessment rubric will be available on the wattle site:

• Identification of relevant issues;
• Understanding and discussion of relevant law and legal process;
• Analysis and application to relevant facts;
• Persuasiveness of arguments;
• Structure including logical development of arguments; and
• Formulation of strong and clear conclusion(s) and advice about outcomes.

Assessment Task 4

Tutorial Attendance

Details of Task: In view of the centrality of the unfolding semester-long trial to student learning, attendance at tutorials is compulsory. Students must attend at least 8 of the 10 tutorials scheduled in this course. Students who miss more than 2 tutorials without documented illness or special circumstances will receive a penalty of 5 marks deducted from the student’s overall mark for the course.

Nature of Task: Compulsory and non-redeemable. Failure to attend 8 out of 10 tutorials will result in 5 marks being deducted from a student's overall course mark.

Weighting: 0% (with a penalty of 5%)

Release: The tutor will take a roll-call at the beginning of each tutorial. It is the student’s responsibility to ensure that their attendance is duly recorded. Late attendance may result in the student being recorded as absent. Changes between groups are not permitted without approval from the convener. 

Due Date: Ongoing at tutorials from week 3 to week 12. Students who are unable to attend their seminar due to illness or special circumstances should email their tutor and retain evidence of the reasons for their absence. If serious or protracted illness or special circumstances are impacting upon a student’s ability to attend seminars, such that they are likely to miss more than 2 of the 10 compulsory tutorials, they must consult the convener as soon as is reasonably practicable.

Estimated Return Date: Official end-of-semester results release date.

Assessment Criteria: Attendance of 8 out of 10 tutorials.

Academic Integrity

Academic integrity is a core part of the ANU culture as a community of scholars. The University’s students are an integral part of that community. The academic integrity principle commits all students to engage in academic work in ways that are consistent with, and actively support, academic integrity, and to uphold this commitment by behaving honestly, responsibly and ethically, and with respect and fairness, in scholarly practice.

The University expects all staff and students to be familiar with the academic integrity principle, the Academic Integrity Rule 2021, the Policy: Student Academic Integrity and Procedure: Student Academic Integrity, and to uphold high standards of academic integrity to ensure the quality and value of our qualifications.

The Academic Integrity Rule 2021 is a legal document that the University uses to promote academic integrity, and manage breaches of the academic integrity principle. The Policy and Procedure support the Rule by outlining overarching principles, responsibilities and processes. The Academic Integrity Rule 2021 commences on 1 December 2021 and applies to courses commencing on or after that date, as well as to research conduct occurring on or after that date. Prior to this, the Academic Misconduct Rule 2015 applies.

 

The University commits to assisting all students to understand how to engage in academic work in ways that are consistent with, and actively support academic integrity. All coursework students must complete the online Academic Integrity Module (Epigeum), and Higher Degree Research (HDR) students are required to complete research integrity training. The Academic Integrity website provides information about services available to assist students with their assignments, examinations and other learning activities, as well as understanding and upholding academic integrity.

Online Submission

You will be required to electronically sign a declaration as part of the submission of your assignment. Please keep a copy of the assignment for your records. Unless an exemption has been approved by the Associate Dean (Education) submission must be through Turnitin.

Hardcopy Submission

For some forms of assessment (hand written assignments, art works, laboratory notes, etc.) hard copy submission is appropriate when approved by the Associate Dean (Education). Hard copy submissions must utilise the Assignment Cover Sheet. Please keep a copy of tasks completed for your records.

Late Submission

Individual assessment tasks may or may not allow for late submission. Policy regarding late submission is detailed below:

• Late submission not permitted. If submission of assessment tasks without an extension after the due date is not permitted, a mark of 0 will be awarded.
• Late submission permitted. Late submission of assessment tasks without an extension are penalised at the rate of 5% of the possible marks available per working day or part thereof. Late submission of assessment tasks is not accepted after 10 working days after the due date, or on or after the date specified in the course outline for the return of the assessment item.
• Late submission is not accepted for tests or examinations.
• Late submission with an extension. To ensure equity for all students, the 5% penalty per working day for late submission of work does not apply if you have been granted an extension. Where an extension is granted, the revised due date and submission time will be provided in writing. Importantly, any revised due date is inclusive of weekends and public holidays. Regardless of which day of the week the revised due date falls on, students who submit after that date will be penalised by 5% of the possible marks available for the task per 24-hour period.

Referencing Requirements

The Academic Skills website has information to assist you with your writing and assessments. The website includes information about Academic Integrity including referencing requirements for different disciplines. There is also information on Plagiarism and different ways to use source material.

Extensions and Penalties

Extensions and late submission of assessment pieces are covered by the Student Assessment (Coursework) Policy and Procedure. Extensions may be granted for assessment pieces that are not examinations or take-home examinations. If you need an extension, you must request an extension in writing on or before the due date. If you have documented and appropriate medical evidence that demonstrates you were not able to request an extension on or before the due date, you may be able to request it after the due date.

Privacy Notice

The ANU has made a number of third party, online, databases available for students to use. Use of each online database is conditional on student end users first agreeing to the database licensor’s terms of service and/or privacy policy. Students should read these carefully. In some cases student end users will be required to register an account with the database licensor and submit personal information, including their: first name; last name; ANU email address; and other information.
In cases where student end users are asked to submit ‘content’ to a database, such as an assignment or short answers, the database licensor may only use the student’s ‘content’ in accordance with the terms of service – including any (copyright) licence the student grants to the database licensor. Any personal information or content a student submits may be stored by the licensor, potentially offshore, and will be used to process the database service in accordance with the licensors terms of service and/or privacy policy.
If any student chooses not to agree to the database licensor’s terms of service or privacy policy, the student will not be able to access and use the database. In these circumstances students should contact their lecturer to enquire about alternative arrangements that are available.

Distribution of grades policy

Academic Quality Assurance Committee monitors the performance of students, including attrition, further study and employment rates and grade distribution, and College reports on quality assurance processes for assessment activities, including alignment with national and international disciplinary and interdisciplinary standards, as well as qualification type learning outcomes.

Since first semester 1994, ANU uses a grading scale for all courses. This grading scale is used by all academic areas of the University.

Support for students

The University offers students support through several different services. You may contact the services listed below directly or seek advice from your Course Convener, Student Administrators, or your College and Course representatives (if applicable).

• ANU Health, safety & wellbeing for medical services, counselling, mental health and spiritual support
• ANU Access and inclusion for students with a disability or ongoing or chronic illness
• ANU Dean of Students for confidential, impartial advice and help to resolve problems between students and the academic or administrative areas of the University
• ANU Academic Skills and Learning Centre supports you make your own decisions about how you learn and manage your workload.
• ANU Counselling Centre promotes, supports and enhances mental health and wellbeing within the University student community.
• ANUSA supports and represents undergraduate and ANU College students
• PARSA supports and represents postgraduate and research students