Unit Profile Correction added on 02-04-20
The end of term assessment has now been changed to an alternate form of assessment. Please see your Moodle site for details of the assessment.
Overview
LAWS13010 Evidence and Proof examines the major features of evidence law and procedure, both statutory and common law, and the major sources of judicial interpretation relevant to a general study of the role, sources and foundation of the law of evidence and a trial procedure, of pre-trial obligations and of rules concerning the burden and standard of proof. Specific topics include: The relevant sources of the law of evidence and procedure; fair trials, proof and adversarialism, including principles underpinning accusatorial justice; Evidentiary issues to be addressed before trial: disclosure, notices and requests; forms of evidence; evidentiary principles and rules, and exceptions to the rules; the bases for privilege including legal professional and client privilege; judicial warnings, comment and directions; and mandatory and discretionary exclusions and the limitations on evidence. This unit meets the LPAB requirements for evidence. This unit also carries content to support Criminal Procedure.
Details
Pre-requisites or Co-requisites
Pre-requisites: LAWS11057 Introduction to Law LAWS11059 Statutory Interpretation LAWS11060 Criminal Law
Important note: Students enrolled in a subsequent unit who failed their pre-requisite unit, should drop the subsequent unit before the census date or within 10 working days of Fail grade notification. Students who do not drop the unit in this timeframe cannot later drop the unit without academic and financial liability. See details in the Assessment Policy and Procedure (Higher Education Coursework).
Offerings For Term 1 - 2020
Attendance Requirements
All on-campus students are expected to attend scheduled classes – in some units, these classes are identified as a mandatory (pass/fail) component and attendance is compulsory. International students, on a student visa, must maintain a full time study load and meet both attendance and academic progress requirements in each study period (satisfactory attendance for International students is defined as maintaining at least an 80% attendance record).
Recommended Student Time Commitment
Each 6-credit Undergraduate unit at CQUniversity requires an overall time commitment of an average of 12.5 hours of study per week, making a total of 150 hours for the unit.
Class Timetable
Assessment Overview
Assessment Grading
This is a graded unit: your overall grade will be calculated from the marks or grades for each assessment task, based on the relative weightings shown in the table above. You must obtain an overall mark for the unit of at least 50%, or an overall grade of ‘pass’ in order to pass the unit. If any ‘pass/fail’ tasks are shown in the table above they must also be completed successfully (‘pass’ grade). You must also meet any minimum mark requirements specified for a particular assessment task, as detailed in the ‘assessment task’ section (note that in some instances, the minimum mark for a task may be greater than 50%). Consult the University’s Grades and Results Policy for more details of interim results and final grades.
All University policies are available on the CQUniversity Policy site.
You may wish to view these policies:
- Grades and Results Policy
- Assessment Policy and Procedure (Higher Education Coursework)
- Review of Grade Procedure
- Student Academic Integrity Policy and Procedure
- Monitoring Academic Progress (MAP) Policy and Procedure – Domestic Students
- Monitoring Academic Progress (MAP) Policy and Procedure – International Students
- Student Refund and Credit Balance Policy and Procedure
- Student Feedback – Compliments and Complaints Policy and Procedure
- Information and Communications Technology Acceptable Use Policy and Procedure
This list is not an exhaustive list of all University policies. The full list of University policies are available on the CQUniversity Policy site.
Feedback, Recommendations and Responses
Every unit is reviewed for enhancement each year. At the most recent review, the following staff and student feedback items were identified and recommendations were made.
Feedback from Unit Evaluation Comments
Students appreciated the change in layout of study guides.
The study guide format, which has clear indicators of what to read/view/do and a weekly checklist of these items, be retained and substance continually updated.
Feedback from Unit Evaluation Data
Students particularly rated the Moodle site highly for usability.
The Moodle site format be retained in the future.
Feedback from Self-evaluation and student feedback
Assessment items need to returned quicker.
The two written assignments are to be reduced in length and weight so that marking turnaround times are reduced. Further, more focus will be provided on the generic feedback document, with less need then for specific individual feedback and an option for students to ask for further individual feedback.
Feedback from Previous unit evaluations
The unit materials require overview to reflect changes in cases and legislation.
The unit materials continue to be progressively updated to reflect recent developments in case law and legislation.
- Interpret and apply common law and statutory rules of evidence in the Queensland and Commonwealth jurisdictions, including indigenous perspectives
- Identify and discuss ethical challenges in the application of Evidence Law, particularly in relation to cross-examination technique, and the use of privilege
- Critically analyse a body of evidence and discuss its admissibility and probative value
- Research and present relevant cases and statutory sources, to utilise evidence law and its authoritative interpretation to respond to authentic legal problems
Alignment of Assessment Tasks to Learning Outcomes
| Assessment Tasks | Learning Outcomes | |||
|---|---|---|---|---|
| 1 | 2 | 3 | 4 | |
| 1 - Written Assessment - 20% | ||||
| 2 - Written Assessment - 20% | ||||
| 3 - Examination - 60% | ||||
Alignment of Graduate Attributes to Learning Outcomes
| Graduate Attributes | Learning Outcomes | |||
|---|---|---|---|---|
| 1 | 2 | 3 | 4 | |
| 1 - Communication | ||||
| 2 - Problem Solving | ||||
| 3 - Critical Thinking | ||||
| 4 - Information Literacy | ||||
| 5 - Team Work | ||||
| 6 - Information Technology Competence | ||||
| 7 - Cross Cultural Competence | ||||
| 8 - Ethical practice | ||||
| 9 - Social Innovation | ||||
| 10 - Aboriginal and Torres Strait Islander Cultures | ||||
Alignment of Assessment Tasks to Graduate Attributes
| Assessment Tasks | Graduate Attributes | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | |
| 1 - Written Assessment - 20% | ||||||||||
| 2 - Written Assessment - 20% | ||||||||||
| 3 - Examination - 60% | ||||||||||
Textbooks
Queensland Evidence Law
Edition: 4th (2017)
Authors: David Field
LexisNexis Butterworths
Australia
Binding: Paperback
Additional Textbook Information
Copies are available for purchase at the CQUni Bookshop here: http://bookshop.cqu.edu.au (search on the Unit code)
IT Resources
- CQUniversity Student Email
- Internet
- Unit Website (Moodle)
All submissions for this unit must use the referencing style: Australian Guide to Legal Citation, 4th ed
For further information, see the Assessment Tasks.
o.owoeye@cqu.edu.au
Module/Topic
- Identify the role of evidence in the legal reasoning process;
- Describe the difference between facts, information and evidence;
- Distinguish, in general terms, between testimony, documentary evidence and real evidence;
- Identify the burdens and standards of proof which apply in different legal circumstances;
- Identify the ways in which evidence can become the basis for adversarial contention in a courtroom; and
- Identify Queensland legislation relevant to evidence law; and
- Distinguish between common law, Evidence Act (Qld) and Uniform Evidence Act schemes of evidence.
Chapter
Events and Submissions/Topic
Module/Topic
After studying Topic 2 you should be able to:
- Identify the meaning of relevance under the common law and in the Uniform Evidence Acts;
- Distinguish between relevance and circumstantial relevance and explain why each is important in a courtroom context;
- Explain the principle of admissibility and its nature as an exclusionary rule;
- Identify instances where a party is relieved of the obligation to adduce evidence (eg. judicial notice, presumptions, and formal admissions);
- Explain the key judicial discretions to refuse to admit evidence, particularly in criminal cases; and the rationale and operation of each of these; and
- Explain the function of a voir dire and the usual conditions for its conduct.
Chapter
Events and Submissions/Topic
Module/Topic
- Distinguish between testimony, documentary evidence and real evidence;
- Explain the concepts of competence and compellability as they relate to witnesses;
- Distinguish between testimony which reflects observations, testimony which reflects opinion, and testimony which reflects the observations of third parties;
- Identify the different forms in which “documentary” evidence might be obtained;
- Explain the need for documentary evidence to be authenticated; and
- Identify different types of real evidence, and other similar practices such as “views”.
Chapter
Events and Submissions/Topic
Module/Topic
- Discuss the nature of oral evidence, and the rules which exist to ensure witnesses strive to give their best evidence;
- Discuss the limitations of oral evidence, as a result of the limits of perception, comprehension, memory and honesty;
- Discuss whether oral evidence gives inherent advantages to more eloquent witnesses;
- Discuss the protections available for witnesses who are children or victims of sexual offences; and
- Discuss the forms of privilege which may protect witnesses from answering certain types of question.
Chapter
Events and Submissions/Topic
Module/Topic
Examination of Witnesses is one of the key skills which most lay people associate with legal practitioners. In fact, this form of advocacy requires quite a special set of skills and can be among the most challenging aspects of practice. Preparation, and a thorough understanding of the rules of evidence, are the keys to successfully dealing with witnesses.
At the end of Topic 5, you should be able to:
- Describe the process of "proofing" a friendly witness, and explain the difference between proofing a witness and "coaching" a witness;
- Distinguish between examination in chief, cross-examination, and re-examination;
- Identify the specific rules which pertain to each form of examination;
- Explain the rules which apply to a side calling a hostile witness;
-
Identify a range of question types, including open, closed, leading, probing, rhetorical and hypothetical questions, and explain when each may or may not be used; and
- State the rule in Browne v Dunn and explain its consequences for examination of witnesses.
Chapter
Events and Submissions/Topic
Module/Topic
Chapter
Events and Submissions/Topic
Module/Topic
After studying Topic 6, you should be able to:
- Explain the rationale for the general exclusion of hearsay evidence;
- Identify statements as hearsay and distinguish them from statements of direct evidence;
- Distinguish between statements called upon as evidence of the truth of the statement, and other statements;
- Distinguish between first-hand and remote hearsay, and identify the legal implications of this distinction;
- Outline the exceptions to the hearsay rule in general terms; and
- Explain how evidence of a prior inconsistent statement can affect the credibility of a witness.
Chapter
Events and Submissions/Topic
Written Assessment Task 1 Due: Week 6 Friday (24 Apr 2020) 11:59 pm AEST
Module/Topic
After studying Topic 7, you should be able to:
- State the rules relating to the hearsay exception when the original maker of the statement is deceased or otherwise unavailable;
- State the res gestae exception to the hearsay rule and explain why res gestae statements are considered to be reliable;
- State the exception for contemporaneous statement and explain its rationale;
- State the exception known as the “telephone rule” and explain its rationale;
- Describe some key differences between the common law and Uniform Evidence Act approaches to hearsay exceptions.
Chapter
Events and Submissions/Topic
Module/Topic
After studying Topic 8, you should be able to:
- Outline factors which contribute to the identification of statements as admissions or confessions;
- Consider the form of admissions, and the importance of the circumstances in which an admission is given;
- In particular, consider the importance of duress and undue influence in the making of admissions;
- Identify confessions as a special case of admissions.
- Consider circumstances in which a confession may meet the higher standard of proof required in criminal cases; and
- Consider the importance of judicial discretion in determining whether admission or confession evidence should be admitted.
Chapter
Events and Submissions/Topic
Module/Topic
After studying Topic 9, you should be able to:
- Identify the many forms in which documentary evidence may be found;
- Identify the inherent limitations in the use of documentary evidence as opposed to testimony;
- Note the need for authentication of documents and explain this process, including the special rules for the authentication of computer records;
- Discuss the potential use, and limitations of exhibits in a courtroom setting;
- Discuss whether courtroom demonstrations can ever be a useful contribution to a court case; and if they can, the relevant circumstances;
- Consider witness appearance and demeanour as a form of real evidence; and
- Note that while views are conducted from time to time, they are not actually a form of evidence.
Chapter
Events and Submissions/Topic
Module/Topic
After studying Topic 10, you should be able to:
- Identify circumstantial evidence and distinguish it from direct evidence;
-
Identify when circumstantial evidence may be used, and its limitations;
- Identify “similar fact” evidence and describe when it may be used in criminal trials;
- Identify “character” evidence, describe which parties may introduce such evidence, and how it should be weighted; and
- Identify “tendency” evidence and describe its use, and limitations on its use, in criminal trials.
Chapter
Events and Submissions/Topic
Experiential Written Assessment (Task 2) due on 22 May 2020
Experiential Written Assessment Task 2 Due: Week 10 Friday (22 May 2020) 11:59 pm AEST
Module/Topic
After studying Topic 11, you should be able to:
- Distinguish opinion evidence from direct observational evidence;
- Identify observational non-expert opinion and interpretive non-expert opinion and explain the different admissibility rules applying to each;
- Explain the role and utility of expert opinion evidence;
- Demonstrate how an “expert” may be authenticated for the purpose of giving expert opinion evidence; and
-
Explain the limitations on expert opinion evidence; in particular, that expert opinion does not bind the finder of fact, and that expert opinion cannot be given on questions of law.
Chapter
Events and Submissions/Topic
Module/Topic
After studying Topic 12 you should be able to:
- Recognise the impact of various procedures or failure to comply with procedures (such as access to legal representation, disclosure, prosecutorial impartiality, and the role of the judge and the jury) upon the right to a fair trial and potential for abuse of process;
- Identify potential remedies for potential or realised unfairness or abuse of process concerns (such as applying for stays of proceedings, other pre-trial applications – such as severing charges, applying for trials by judge alone, transfer, judicial direction, special pleas and appeals); and
- Understand the law around double jeopardy and its statutory incarnations.
Chapter
Events and Submissions/Topic
Module/Topic
Studying in flexible mode requires careful time management to balance personal, professional and university study commitments.The first few weeks of the term are critical. Experience of teaching staff suggests that students who have reviewed unit requirements, assessments, and attend sessions have better chances of succeeding. It is important that you do the following:
- read and understand details of the unit of study such as learning outcomes
- read and understand assessment requirements
- develop a personal study plan for the term which lists key deadlines e.g. assessment
- familiarise yourself with the workload involved in the unit and other units you are undertaking
- communicate with the teaching staff or the Unit Coordinator if you have any questions or clarifications
- engage with other students enrolled in the unit. Peer engagement helps clarify many questions
- familiarise yourself with the teaching resources and prescribed text
Chapter
Events and Submissions/Topic
Module/Topic
LEARNING SUPPORT
The University provides various support services to assist you in learning. Some of the supports that you may find useful include the following:
Library: provides access on electronic learning resources such as academic journals, books, and other publications. Knowing how to navigate and find publications will assist you in your assessments and learning in the unit.
Academic Learning Centre (ALC): provides academic skills workshops which aim to improve academic writing, oral presentations, literature searches, and effective time management in tertiary study. The ALC also provides training on how to cite references in essays, reports or other assessments.
Unit Advisors: provide relevant academic advice to students.
Student Support Staff: provide relevant support related to enrolment, admissions, timetabling, counselling and careers advice, and other day to day non-academic advice and support. Specific advice to international students, such as extending Confirmation of Enrolment (CoE) and others can be provided by student support staff.
ACADEMIC MISCONDUCT
The school is committed to educating new and existing students about plagiarism and academic misconduct with the aim to raise awareness. Academic misconduct impacts upon student learning. Students who engage in academic misconduct cases may be penalised by the deduction or marks or they could fail the unit. In some cases academic misconduct has consequences on registration or accreditation in some professions, such as law.
Common types of Plagiarism and Misconduct Cases
- Purchased assessment written by other people e.g. freelance writers
- Copying text from various sources without proper referencing. Sources may include books, journals, websites etc
- Copying text from another student’s assessment. It could be a former student or currently enrolled in the same unit of study. This could have taken place with one or group of students who have access to other students work
- Using your own work submitted in other assessment(s) without referencing them
- Cheating in the exam
- Using a fraudulent medical certificate
What could students do to avoid such cases?
Be honest: assessment plays an important role in maintaining the integrity of the course. Assessments are used to assess the extent to which students have achieved the learning outcomes. Submitted assessment must be a student’s original work. If your assessment is done by someone else, then you must question if what you are doing is ethically right
Seek help: if you are new student and you are not sure about how to cite or reference in essays, reports etc, then seek help from Academic Learning Centre (ALC)
Read academic journals: all academic publications use different referencing styles. Regular reading of academic papers published in journals will help in understanding how references are cited in the body of the essay and also in the reference list
Being original: producing your own work is important. Organisations or employers are looking for graduates who are innovative and creative. Originality comes from your ability to think critically and recommending solutions to workplace problems. It is not hard for teaching staff or employers to find out if students or graduates are not producing original work
The school has engaged a number of domestic and international students to assist in raising awareness. A short video has been developed and used in all Business and Law related Moodle sites. The video aims to educate students about plagiarism and academic misconduct.
Chapter
Events and Submissions/Topic
1 Written Assessment
The written assessment task aligns with learning outcomes 1, 2, 3 and 4.
You will be assigned a research question (via an assignment instructions document that will be released in Moodle). The question will require you to research and consider the principles of the law of evidence in analysis and response to the question. You will be required to submit a written response.
Week 6 Friday (24 Apr 2020) 11:59 pm AEST
To be submitted via Moodle
Week 8 Monday (4 May 2020)
To be returned via Moodle
WRITTEN ASSESSMENT MARKING RUBRIC
| Mark | General Criteria |
| 85%+ | Excellent writing style – concise, clear and well-organised. Appropriate structure – including strong introduction, logically constructed body and conclusion. Clearly identifies scope of topic. Displays very high-level understanding and analysis of the law of evidence as it applies to all of the issues raised in the question. Presents a compelling reasoned argument supported with strong authority and sophisticated engagement with the literature. Very few or no spelling or grammatical errors. Very few or no errors in referencing style. Displays excellent research skills. |
| 75-84.5% | Very good writing style, with only a few expression issues. The assignment is logical and structured. Keeps to task after identifying the topic clearly and accurately. Displays high level of understanding and analysis of the law of evidence as it applies to most of the issues raised in the question. Presents a reasoned argument, largely supported by good authority and sophisticated engagement with the literature. Few spelling and grammatical errors and few errors in referencing style. Displays very good research skills. |
| 65-74.5% | Good writing style. May be some grammar and spelling errors and/or some errors in referencing. Defines topic adequately. Does not include much in the way of extraneous material. Demonstrates a good understanding and analysis of the law of evidence as it applies to some of the issues raised in the question but at times addresses them superficially or gives them inappropriate weight. Some gaps in reasoning, but largely supported by good authority and good engagement with the literature. Displays good research skills. |
| 50-64.5% | Generally adequate writing style. Some grammar and spelling errors and/or some errors in referencing. Attempt to define topic but sometimes fails to keep to task. Inclusion of extraneous unnecessary material. Demonstrates an adequate understanding and analysis of the law of evidence as it applies to some of the issues raised in the question. At times the analysis is incorrect, and although there may be adequate engagement with the literature there are gaps in reasoning and at times the issues identified need to be addressed in more depth. Largely descriptive with little analysis. Too much reliance on secondary sources. Displays adequate research skills. |
| <50% | Poor writing style, poorly organised and difficult to understand manner of expression. Long convoluted sentence structure, numerous grammar and spelling errors. Numerous errors in referencing. Inadequately defines topic. The assignment may be significantly shorter than required length. Displays fundamental flaws in understanding of the law of evidence. Displays misunderstanding of the issues raised in the question and engages superficially (eg. By only repeating material from study guide/lecture material). Research skills require improvement. Inadequate research demonstrated, insufficient or incorrect authority – either due to lack of authority or reliance on inappropriate authorities. Largely descriptive effort with very little analysis and inadequate engagement with the literature. |
- Interpret and apply common law and statutory rules of evidence in the Queensland and Commonwealth jurisdictions, including indigenous perspectives
- Identify and discuss ethical challenges in the application of Evidence Law, particularly in relation to cross-examination technique, and the use of privilege
- Communication
- Problem Solving
- Critical Thinking
- Information Literacy
- Cross Cultural Competence
2 Written Assessment
The experiential written assessment task aligns with learning outcomes 2, 3 and 4. You will be assigned a problem question (via an assignment instructions document that will be released in Moodle), which will require you to research the law of evidence and apply the law to the facts. You will be required to submit a written submission for a pre-trial application related to the admissibility of evidence.
Week 10 Friday (22 May 2020) 11:59 pm AEST
To be submitted via Moodle
Week 12 Friday (5 June 2020)
To be returned via Moodle
EXPERIENTIAL WRITTEN ASSESSMENT MARKING RUBRIC
| Mark | General Criteria |
| 85%+ | Excellent writing style – concise, clear, logical and well-organised. You have identified all the correct issues, demonstrated an exceptional understanding of the relevant law (and always support your accurate statements of law with the most appropriate authority); applied the law to the facts in a manner that is outstandingly thorough, precise, and focused; arguing with clarity; and including in your answer an insightful analysis of the more difficult or obscure aspects of the problem. Very few or no spelling or grammatical errors. Very few or no errors in referencing style. Displays excellent research skills. |
| 75-84.5% | Very good writing style, with only a few expression issues. You have identified the correct issues frequently, have explained the relevant law thoroughly and precisely (frequently supporting your statements of law with the most appropriate authority); applied the law to the facts of the problem in a way that demonstrates an ability to very competently use the law to solve problems; and made a clear argument. The assignment is logical and structured. Few spelling and grammatical errors and few errors in referencing style. Displays very good research skills. |
| 65-74.5% | Good writing style. You have identified most of the correct issues, have explained the relevant law thoroughly and precisely (usually supporting your statements of law with the most appropriate authority); applied the law to the facts of the problem in a way that demonstrates an ability to competently use the law to solve problems; and made an appropriate argument. May be some grammar and spelling errors and/or some errors in referencing. Displays good research skills. |
| 50-64.5% | Generally adequate writing style. Some grammar and spelling errors and/or some errors in referencing. You have identified the main issues, but at times you have dealt with irrelevant issues or expressed them inaccurately or unclearly or in insufficient depth; you have explained the main relevant laws (usually supported by relevant, but not necessarily the most appropriate authority); made a satisfactory attempt to apply the law to the facts of the problem (but sometimes inconsistently); and made a competent argument. Displays adequate research skills. |
| <50% | Poor writing style, poorly organised and difficult to understand manner of expression. Long convoluted sentence structure, numerous grammar and spelling errors. Numerous errors in referencing. The assignment may be significantly shorter than required length. You missed the main issues and have explained the relevant law in a way that is completely or partially incorrect; you may have misunderstood the facts or failed to satisfactorily apply the law to the facts of the problem; and/or presented an unjustified, illogical, inappropriate or impractical conclusion. Research skills require improvement. |
- Critically analyse a body of evidence and discuss its admissibility and probative value
- Research and present relevant cases and statutory sources, to utilise evidence law and its authoritative interpretation to respond to authentic legal problems
- Communication
- Problem Solving
- Critical Thinking
- Information Literacy
Examination
As a CQUniversity student you are expected to act honestly in all aspects of your academic work.
Any assessable work undertaken or submitted for review or assessment must be your own work. Assessable work is any type of work you do to meet the assessment requirements in the unit, including draft work submitted for review and feedback and final work to be assessed.
When you use the ideas, words or data of others in your assessment, you must thoroughly and clearly acknowledge the source of this information by using the correct referencing style for your unit. Using others’ work without proper acknowledgement may be considered a form of intellectual dishonesty.
Participating honestly, respectfully, responsibly, and fairly in your university study ensures the CQUniversity qualification you earn will be valued as a true indication of your individual academic achievement and will continue to receive the respect and recognition it deserves.
As a student, you are responsible for reading and following CQUniversity’s policies, including the Student Academic Integrity Policy and Procedure. This policy sets out CQUniversity’s expectations of you to act with integrity, examples of academic integrity breaches to avoid, the processes used to address alleged breaches of academic integrity, and potential penalties.
What is a breach of academic integrity?
A breach of academic integrity includes but is not limited to plagiarism, self-plagiarism, collusion, cheating, contract cheating, and academic misconduct. The Student Academic Integrity Policy and Procedure defines what these terms mean and gives examples.
Why is academic integrity important?
A breach of academic integrity may result in one or more penalties, including suspension or even expulsion from the University. It can also have negative implications for student visas and future enrolment at CQUniversity or elsewhere. Students who engage in contract cheating also risk being blackmailed by contract cheating services.
Where can I get assistance?
For academic advice and guidance, the Academic Learning Centre (ALC) can support you in becoming confident in completing assessments with integrity and of high standard.
What can you do to act with integrity?
