This course covers important aspects of fact-finding and the adducing and admissibility of evidence in legal proceedings. The course is structured to meet the admission requirements for practice as a legal practitioner in the Australian States and Territories. Particular topics include:

investigation and organisation of factual material adducing evidence in court testimonial, real and documentary evidence examination, cross-examination and reexamination of witnesses burden and standard of proof relevance of evidence to facts in issue admissibility rules (e.g. credibility, hearsay, opinion, tendency and coincidence, identification and character evidence), and exceptions privileges judicial discretions and conduct of proceedings.

The course will be based on the Uniform Evidence Law, comprising the Evidence Act 1995 (Cth) along with counterpart legislation in New South Wales, Tasmania, Victoria, Norfolk Island, the Australian Capital Territory and the Northern Territory. The course also makes reference to law reform perspectives and other legislation.

The course is designed to be taken towards the end of the degree. The study of evidence is required for admission to legal practice.

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. Analyse and apply the rules of evidence, evidentiary standards, substantive law, principles of statutory construction, and policy considerations, to resolve complex evidentiary issues and questions of admissibility.
2. Critically evaluate the rules of 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. Communicate professionally and follow court procedure in a trial context.
4. Synthesise and apply a range of legally specific research principles, methods, primary legal resources, and evidentiary standards to respond to a factually complex evidence problem.
5. Analyse a brief of evidence, consider the admissibility of evidence contained and draw a conclusion about the prospects of proof.

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.
• Evidence Act 2011 (ACT)

A full list of readings will be made available on Wattle two weeks prior to the course commencement date.

For students with a 6th edition of the above case book, the convenor will provide a list of new cases and major changes to assist you.

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

Extenuating circumstances: https://www.anu.edu.au/students/program-administration/assessments-exams/extenuating-circumstances-application

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

Distribution of Grades Policy: https://law.anu.edu.au/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 and updates relating to the course.

Artificial Intelligence (AI)

The ANU Academic Integrity website (https://www.anu.edu.au/students/academic-skills/academic-integrity ) provides information about services available to assist students with their assignments, examinations and other learning activities, as well as providing clear guidance on the responsible and ethical use of AI technologies.

The following resources may also be useful:

• The ANU Library's Libguide (https://libguides.anu.edu.au/generative-ai ) is a valuable resource for gaining a comprehensive understanding of AI's role in academia.

• The ANU Academic Skills site (https://www.anu.edu.au/students/academic-skills ) provides useful information to ensure that you leverage AI responsibly and effectively.

• The ANU College of Law Academic Integrity and Misconduct site (https://law.anu.edu.au/academic-integrity-and-misconduct ) provides content related to legal implications, ethical guidelines, and considerations when dealing with AI in the context of law.

Class Schedule

Week/Session	Summary of Activities	Assessment
1	Introduction: Purposes of Evidence Rules, standard of proof, overview of the Evidence Act(s), relevance, probative value, unfair prejudice
2	Giving and presenting (i.e., adducing) evidence
3	Fact evidence versus opinion evidence	Tutorial 1
4	Credibility evidence	Tutorial 2
5	Hearsay evidence	Tutorial 3
6	Hearsay exceptions	Tutorial 4
7	Admissions	Tutorial 5
8	Tendency and coincidence evidence	Tutorial 6
9	Identification evidence and probative value	Tutorial 7
10	Identification evidence and probative value	Tutorial 8
11	Credibility evidence, warnings, and advanced topics in proof	Tutorial 9
12	Revision and exam preparation	Tutorial 10

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
Research essay	50 %	02/09/2024	23/09/2024	1,2,4
Final Examination	50 %	*	*	1,4,5
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
• Extenuating Circumstances Application
• 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 essay and final exam 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

Research essay

Details of Task: You will have the option of researching and writing on one of two topics related to the evidence that supported the original of conviction of Kathleen Folbigg, who was acquitted in 2023 (20 years after her conviction). Both options involve researching the relevant rules and then critically examining those rules.

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

Weighting: 50%

Release: Topics will be released in Week 3.

Word Limit: The maximum word count is 2,500 words, with standard penalties applying for overage. The word count includes all text, except reference footnotes. The ANU College of Law's Word Length and Excess Word penalties policy can be found here.

Due Date: 5pm, Monday 2 September 2024. Late submission (without an extension) is permitted, although late penalties will apply.

Estimated Return Date: 23 September 2024.

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

• Rigour and thoroughness of research
• Application of law to facts
• Critical analysis of evidence rules, including strength of arguments
• Clarity, writing style, and referencing

Assessment Task 2

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 proposed evidence, consider the admissibility of evidence, 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: 50%

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.

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

Assessment Criteria: An assessment rubric will be available on the Wattle:

• 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 3

Tutorial Attendance

Details of Task: In light of the practical and contextual nature of evidence law, tutorial attendance 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 sent to enquiries.law@anu.edu.au prior to that class, will receive a penalty of 5 marks deducted from their 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. 

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. You must ensure that you upload the correct document on the specified submission due date and time. Any document modified after the due date and time will either incur a late penalty or will NOT be accepted. Unless an exemption has been approved by the Associate Dean (Education), submission must be through Turnitin in a word processing file format (.doc, .docx). Electronic copies in .pdf file format are not acceptable.

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. Any use of artificial intelligence must be properly referenced. Failure to properly cite use of Generative AI will be considered a breach of academic integrity.

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 Accessibility 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 supports you make your own decisions about how you learn and manage your workload.
• ANU Counselling promotes, supports and enhances mental health and wellbeing within the University student community.
• ANUSA supports and represents all ANU students