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.  
 

Learning Outcomes

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

1. Formulate a plan for establishing each legal element of a case to the required standard of proof with admissible evidence when given a set of case file materials and a legal case to prove (e.g. negligence, defamation, theft, murder, etc.).
2. Plan and execute a strategic witness examination that comports with evidentiary standards and that persuasively establishes a fact in issue in a case; anticipate and respond to evidentiary objections that may be raised during your examination.
3. Identify, evaluate, articulate and assert appropriate evidentiary objections on examination of a witness; articulate the reasons for your objections and respond persuasively to questions from the judge.
4. Critically analyse, draft and execute a witness examination for the introduction of an item of proof into evidence;
5. Formulate, assert and support strategic objections to items of proof, using appropriate evidentiary rules and tailoring objections to the facts at hand;
6. Use a variety of case file materials (witness statements, documents, etc.) to make a coherent and persuasive argument for the admission or exclusion of a specific item of evidence; select and incorporate factual information and legal standards drawn from both evidentiary rules and substantive law (such as criminal law or tort law).
7. Analyse and apply evidentiary standards to a complex evidentiary issue; decide when further case law research is needed, conduct necessary research, evaluate case law, and present a persuasive argument for the admission or exclusion of the evidence.
8. Articulate a coherent, objective decision on the admissibility of evidence; incorporate evidentiary standards, substantive law, principles of statutory construction and policy considerations in your decision.

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:

• Anderson and Hopkins, Uniform Evidence Law Guidebook (Oxford University Press, 2014).
• Hopkins, ‘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 (http://www.austlii.edu.au/au/journals/JlALawTA/2009/15.pdf)

Required Resources

Kumar, Odgers and Peden, Uniform Evidence Commentary & Materials (6th ed. 2018) Thomson Reuters (9780455241111)

And either of the following:

• Odgers, Uniform Evidence Law (16th ed. 2021) Thomson Reuters. Book and/or eBook. The 14th edition can be used, though it will contain out of date material. This text provides leading and comprehensive guidance on UEL to barristers, solicitors, courts and students. It is available as a standard printed text and/or as an eBook, OR
• Odgers, Uniform Evidence Law online version, freely accessible through the ANU Law Library Westlaw database located under Evidence commentaries (this can be rather clunky): http://libguides.anu.edu.au/c.php?g=759049&p=5446734

Recommended Resources

Gans, Palmer and Roberts, Uniform Evidence (3rd ed. 2019) Oxford.

Weinstein, Anderson, Marychurch and Roy Uniform Evidence in Australia (3^nd ed. 2020)

Hum, Jackman, Quirico, Urbas and Werren, Australian Uniform Evidence Law (2019)

Ligertwood and Edmond, Australian Evidence: A principled Approach to the Common Law and Uniforms Acts (6th ed. 2017)

Anderson and Hopkins, Uniform Evidence Law Guidebook (2014) (contains 2014 version of case file/trial brief used in this course).

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). The feedback given in these surveys is anonymous and provides the Colleges, University Education Committee and Academic Board with opportunities to recognise excellent teaching, and opportunities for improvement. The Surveys and Evaluation website provides more information on student surveys at ANU and reports on the feedback provided on ANU courses.

Other Information

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

Special consideration: http://www.anu.edu.au/students/program-administration/assessments-exams/special-assessment-consideration

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

Distribution of Grades Policy: Effective from Winter Session and Second Semester 2018 (and until further notice), the interim scaling guideline applies to all courses in the LLB (Hons) and JD programs. Please see: https://law.anu.edu.au/current-students/policies-procedures/grading

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 details on weekly classes and 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 Ganglands: 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

Enrolment in tutorials will be via the Wattle site. Tutorials will open for enrolment two weeks prior to commencement of the course, at 11 am Monday 12th of July.

Assessment Summary

Assessment task	Value	Due Date	Return of assessment	Learning Outcomes
Appearance as Counsel	10 %	*	*	1,2,3,4,5,6,7,8
Mid-Semester Multiple Choice Online Assessment	30 %	03/09/2021	20/09/2021	3,5,7,8
Final Take Home Examination	60 %	*	*	1,2,5,6,7,8
Tutorial Attendance	0 %	*	*	1,2,3,4,5,6,7,8

* 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 Misconduct Rule before the commencement of their course. Other key policies and guidelines include:

• Student Assessment (Coursework) Policy and Procedure
• Special Assessment Consideration Policy and General Information 
• Student Surveys and Evaluations
• Deferred Examinations
• Student Complaint Resolution Policy and Procedure

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 Integrity . 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.

Assessment Task 1

Appearance as Counsel

Brief Description: 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. Non-completion of this task will result in a 0 for this assessment task.

Weighting: 10%

Release: Witness Statements and Instructions will be available from the first week of semester.

Due date: At assigned tutorial. No extensions are permitted.

Estimated return date: Within two weeks of assigned tutorial in the form of rubric and written feedback direct from the tutor (which will supplement oral feedback given at the time of the appearance).

Assessment Criteria:

• Organisation, presentation and manner 
• Witness examination (Including objections and responses to objections)
• Submissions and responses to questions from the bench
• An assessment rubric and details of this assessment task will be available on the Wattle site.

Assessment Task 2

Mid-Semester Multiple Choice Online Assessment

Brief Description: 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. Non submission of this task will result in a 0 for this assessment task. 

Weighting: 30%

Release: 3 pm Friday 3 September 2021 via Wattle.

Due date: 4.15 pm Friday 3 September 2021 via Turnitin. If you experience unavoidable and extenuating circumstances and cannot complete the assessment at the due date and time, you should apply for an extension to the ANU College of Law Student Administration Services: https://law.anu.edu.au/forms/assessment-extension-request. The College will give you one further opportunity to complete the assessment, at the same time one week later. This will be your final opportunity to complete the task.

Duration: The total time for completion of the exam will be 1 hour and 15 minutes. There is no separate reading time.

Permitted Material: There are no restrictions on permitted material.

Estimated return date: By Week 7 via wattle. Feedback will be provided via wattle.

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
• Capacity to consider and critique the rules of evidence and the strengths and weaknesses of the adversarial system of trial.

Assessment Task 3

Final Take Home Examination

Brief Description: The final take home 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. Non submission of this task will result in a 0 for this assessment task. 

Weighting: 60%

Timing/Release: The exam will be released via Wattle. Students should consult the ANU examination timetable to confirm the date, duration and time of the exam.

Due Date: 3 hours (180 minutes) after release, via Turnitin. Late submission is not permitted.

Duration: The total time for completion of the exam will be 3 hours. There is no separate reading time. It is suggested that students spend 30 mins reading before commencing their written answer.

Estimated return date: Official end of semester results release date via Turnitin.

Assessment Criteria: 

• 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
• Formulation of strong and clear conclusion(s) and advice about outcomes
• An assessment rubric will be available on the wattle site.

Assessment Task 4

Tutorial Attendance

Brief Description: 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. The minimum attendance rule is that 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. Failure to attend 8 out of 10 tutorials will result in 5 marks being deducted from a students 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 the consent of the convener. 

Due date: Ongoing at tutorials from week 2 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: After final results are released.

Assessment Criteria: Attendance at 8 out of 10 tutorials.

Academic Integrity

Academic integrity is a core part of the ANU culture as a community of scholars. At its heart, academic integrity is about behaving ethically, committing to honest and responsible scholarly practice and upholding these values with respect and fairness.

The ANU commits to assisting all members of our community to understand how to engage in academic work in ways that are consistent with, and actively support academic integrity. The ANU expects staff and students to be familiar with the academic integrity principle and Academic Misconduct Rule, uphold high standards of academic integrity and act ethically and honestly, to ensure the quality and value of the qualification that you will graduate with.

The Academic Misconduct Rule is in place to promote academic integrity and manage academic misconduct. Very minor breaches of the academic integrity principle may result in a reduction of marks of up to 10% of the total marks available for the assessment. The ANU offers a number of online and in person services to assist students with their assignments, examinations, and other learning activities. Visit the Academic Skills website for more information about academic integrity, your responsibilities and for assistance with your assignments, writing skills and study.

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 take-home 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 given an extension. Where an extension is granted, the revised due date and submission time is provided in writing. Please note that the revised due date is calculated by including weekends and public holidays. Regardless of which day of the week the revised due date falls on, students who submit after that date are penalised by 5% of the possible marks available for the assessment task per day or part thereof.

Referencing Requirements

Accepted academic practice for referencing sources that you use in presentations can be found via the links on the Wattle site, under the file named “ANU and College Policies, Program Information, Student Support Services and Assessment”. Alternatively, you can seek help through the Students Learning Development website.

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 Diversity 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