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/ Diploma in Law /LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
11 EVIDENCE
WINTER SESSION 2017
This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.
Course Description and Objectives / 1Lecturers / 1
Assessment / 1-2
September 2017 Examination / 2
Lecture Program / 3
Weekend Schools 1 and 2 / 4-5
Texts and Materials / 5
Compulsory Assignment / 6
Assignment Question / 6
Prescribed Topics and Course Outline / 7-11
Lecture Outlines / 12-23
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LAW EXTENSION COMMITTEE
/WINTER 2017
11 EVIDENCE
Course description and objectives
The Evidence course is devoted to an examination of the rules governing the presentation of evidence in common law trials, both civil and criminal.
The laws of evidence applicable in New South Wales and the federal jurisdictions have recently undergone a wholesale revision. The central focus of the course is now on the provisions of the Evidence Act 1995. As the Commonwealth Act and the New South Wales Act are, for our purposes, identical, we will consider the Commonwealth Act. The older case law remains relevant as an aid to understanding the new provisions.
The matters considered include the manner and form in which evidence can be presented to the court, the matters which are susceptible of proof as defined by the inclusionary and exclusionary rules, and the tests to be applied in determining whether sufficient evidence has been introduced. Students will be alerted to the ongoing debates that impact on this area of the law, and specifically to the way in which the law impacts on women.
At this stage of the program, students are expected to possess the skills necessary to answer problem, case note and essay questions, and are encouraged to form and express their own views on the subject matter of the course.
LECTURERS
Professor Elisabeth Peden, BA Hons (Sydney), LLB Hons (Sydney), PhD (Cambridge)
Elisabeth Peden is a barrister practising at the NSW Bar and Professor of Law at the University of Sydney. She has worked as an associate to Justice Lockhart (Federal Court) and Justice McHugh (High Court). Elisabeth studied languages and law at the University of Sydney before completing a PhD at the University of Cambridge. She is the co-author of several books on evidence law.
Ms Miiko Kumar, BA, LLB (Sydney)
Miiko Kumar is a graduate of the University of Sydney, where she is now a senior lecturer in the Faculty of Law. She is also a practising barrister. Miiko was admitted as a solicitor in 1996 and called to the Bar in 2001. As a solicitor, she worked at the Office of the Director of Public Prosecutions (NSW) and Crown Solicitor’s Office. She was a law reform officer at the Australian Law Reform Commission. She is the co-author of several books on evidence law.
Alexander Kuklik, BJaps (ANU), LLB (Hons) (ANU), LLM (Sydney), Grad Dip Military Law (M) (ANU)
Alex is a graduate of the University of Sydney and currently practices as a barrister at 12 Wentworth Selborne Chambers, in contract and commercial law. As a solicitor he worked in private practice and with the Australian Securities and Investments Commission.
ASSESSMENTTo be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject. The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.
SEPTEMBER 2017 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics: General aspects; Forms of evidence; Admission and use of evidence and Proof.
Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed the cases and statutory provisions referred to in the Law Extension Committee's course outline.
All queries in relation to examinations should be directed to the Legal Profession Admission Board.
The exam will be closed book. Candidates will not be permitted to take any material into the exam. In addition, candidates will not be provided with the legislation.
LECTURe PROGRAM
Evening lectures will be held on Monday nights, commencing at 6.00pm. For details as to the location of venues, refer to the Course Information Handbook for a map of the University of Sydney main campus.
This program is a general guide and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic, and to encourage further reading. You should not rely on them alone.
WEEK / TOPIC / KEY READING / VENUE1
8 May / General and Introductory / New LSLT 104
2
15 May / Testimonial Evidence I / SH v The Queen [2012] NSWCCA 79 / New LSLT 104
3
22 May / Testimonial Evidence II / Payless Superbarn Pty Ltd v O’Gara (1990) 19 NSWLR
Khamis v The Queen [2010] NSWCCA 179 / New LSLT 104
4
29 May / Documentary and
Other (Real) Evidence / Evans v The Queen (2007) 235 CLR 521 / New LSLT 104
5
5 June / Relevance and
Discretionary Exclusion / Papakosmos v R (1999) 196 CLR 297
Smith v The Queen (2001) 206 CLR 650
IMM v The Queen [2016] HCA 14 / New LSLT 104
6
12 June / NO LECTURE DUE TO PUBLIC HOLIDAY
Study Break: Saturday 17 June 2017 – Sunday 2 July 2017
7
3 July / Hearsay / Subramaniam v Public Prosecutor [1956] 1 WLR 965
Lee v The Queen (1998) 195 CLR 594
Graham v The Queen (1998) 195 CLR 606
Sio v The Queen [2016] HCA 32 / New LSLT 104
8
10 July / Admissions / Em v The Queen (2007) 232 CLR 67 / New LSLT 104
9
17 July / Opinion Evidence / Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Lithgow City Council v Jackson [2012] HCA 36
Honeysett v The Queen [2014] HCA 29 / New LSLT 104
10
24 July / Tendency and Coincidence Evidence / DSJ v The Queen; NS v The Queen [2012] NSWCCA 9 (KOP [10.80]) / New LSLT 104
11
31 July / Credibility / Adam v The Queen (2001) 207 CLR 96 / New LSLT 104
12
7 Aug / Privileges / Esso Australian Resources Ltd v Federal Commission of Taxation (2000) 168 ALR 123
Mann v Carnell (1999) 168 ALR 86 / New LSLT 104
13
14 Aug / Proof / Jones v Dunkel (1959) 101 CLR 298
Weissensteiner v The Queen (1993) 178 CLR 217
Dyers v The Queen (2002) 210 CLR 283 / New LSLT 104
Weekend SchoolS 1 and 2
There are two weekend schools primarily for external students. Lecture students may attend on the understanding that weekend school classes aim to cover the same material as provided in weekly lectures and are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course at the weekend schools. These programs are a general guide and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic and to encourage further reading. You should not rely on them alone.
Weekend School 1
TIME / MAJOR TOPICS / KEY READINGSaturday 27 May 2017: noon – 4.00pm in New Law School Lecture Theatre 106 (New LSLT 106)
12.10pm-1.10pm / General & Introductory
1.25pm-2.40pm / Testimonial Evidence I / SH v The Queen [2012] NSWCCA 79
2.45pm-3.55pm / Testimonial Evidence II / Payless Superbarn Pty Ltd v O’Gara (1990) 19 NSWLR
Khamis v The Queen [2010] NSWCCA 179
Sunday 28 May 2017: 8.00am – noon in New Law School Lecture Theatre 106 (New LSLT 106)
8.00am-9.20am / Documentary and
Other (Real) Evidence / Evans v The Queen (2007) 235 CLR 521
9.30am-10.40am / Relevance & Discretionary
Exclusion / Smith v The Queen (2001) 206 CLR 650
IMM v The Queen [2016] HCA 14
10.45am-11.45am / Hearsay / Subramaniam v Public Prosecutor [1956] 1 WLR 965
Lee v The Queen (1998) 195 CLR 594
Graham v The Queen (1998) 195 CLR 606
Sio v The Queen [2016] HCA 32
Weekend School 2
TIME / MAJOR TOPICS / KEY READINGSaturday 22 July 2017: noon – 4.00pm in New Law School Lecture Theatre 106 (New LSLT 106)
12.10pm-1.10pm / Admissions / Em v The Queen (2007) 232 CLR 67
1.25pm-2.40pm / Opinion Evidence
Tendency & Coincidence Evidence / Dasreef Pty Ltd v Hawchar (2011) 243 CLR
Lithgow City Council v Jackson [2012] HCA 36
Honeysett v The Queen [2014] HCA 29
2.45pm-3.55pm / Credibility / Adam v The Queen (2001) 207 CLR 96
Sunday 23 July 2017: 8.00am – noon in New Law School Lecture Theatre 106 (New LSLT 106)
8.00am-9.20am / Privileges / Esso Australian Resources Ltd v Federal Commission of Taxation (2000) 168 ALR 123
Mann v Carnell (1999) 168 ALR 86
9.30am-10.40am / Proof / Jones v Dunkel (1959) 101 CLR 298
Weissensteiner v The Queen (1993) 178 CLR 217
Dyers v The Queen (2002) 210 CLR 283
10.45am-11.45am / Revision / Examination Paper September 2007
TEXTS AND MATERIALS
Course Materials
· Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials
· Kumar, Odgers, Peden, Uniform Evidence Law: Commentary and Materials, 5th ed. Thomson Reuters, 2015 (KOP)
· Evidence Act 1995 (Cth) or (NSW)
Reference Materials
· Criminal Procedure Act 1986 (NSW)
· Stephen Odgers, Uniform Evidence Law, (12th ed 2016) (hereafter “Odgers”)
· KOP is a companion volume to Odgers. Students can access this resource in electronic format from the Library’s webpage.
· Neil Williams et al, Uniform Evidence in Australia, LexisNexis (2015)
· Andrew Hemming, Miiko Kumar and Elisabeth Peden, Evidence: Commentary and Materials (8th ed, 2013)
· Andrew Ligertwood and Gary Edmond, Australian Evidence, (5th ed, 2010) (6th edition to be published in July 2017)
· Jeremy Gans and Andrew Palmer, Uniform Evidence, (2nd ed, 2014)
· J D Heydon, Cross on Evidence, (10th ed, 2015)
Students can also access this resource electronically from the library’s database.
· Jill Hunter et al, The Trial: Principles, Process and Evidence, Federation Press (2015)
· Australian Law Reform Commission, New South Wales Law Reform Commission, Victorian Law Reform Commission, 'Uniform Evidence Law' (ALRC Report No 102, NSWLRC Report 112, VLRC Final Report, Australian Law Reform Commission, New South Wales Law Reform Commission, Victorian Law Reform Commission, 2005). Thisreport can be accessed from http://www.alrc.gov.au.
· Australian Law Reform Commission, Evidence Interim Report (No 26) 2 vols (1985) Via AustLII Evidence Final Report (No 38) (1987) Via AustLII
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the facilities on the Webcampus including links to relevant cases and legislation in the Course Materials section.