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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
11 EVIDENCE SUBJECT GUIDE
WINTER SESSION 2007
Course Description and Objectives / 1Teachers / 1
Assessment / 1
September 2007 Examination / 2
Lecture Program / 2
Weekend Schools 1 and 2 / 3
Texts and Materials / 4
Assignment / 4
Assignment Questions / 5
Prescribed Topics and Course Outline / 6
Lecture Outlines / 10
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LAW EXTENSION COMMITTEE
/WINTER 2007
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 programme, 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.
TEACHERS
Mr A J O'Brien, B Ec, LLM (Syd), CA
Mr Tony O'Brien is a member of the New South Wales Bar and a Chartered Accountant. He holds the degrees of Bachelor of Laws, Bachelor of Economics and Master of Laws from the University of Sydney. Mr O'Brien was previously a Solicitor of the Supreme Court, and has worked in the tax divisions of large law and accounting firms.
He is a long standing Member of the Law Extension Committee as a nominee of the NSW Bar Association. He also teaches Taxation and Revenue Law for the Committee.
Professor E S Magner, BA (Ott), BEd (Tor), LLB (ANU), LLM (UNSW), SJD (Tor)
Professor Eilis S Magner, holds the Foundation Chair in the School of Law at the University of New England. She holds the degrees of Bachelor of Arts from the University of Ottawa, Bachelor of Education from the University of Toronto, Bachelor of Laws from the Australian National University, Master of Laws from the University of New South Wales and Doctor of the Science of Jurisprudence from the University of Toronto. Professor Magner has written extensively on the Law of Evidence.
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.
Then, students must achieve a satisfactory result (at least 50%) in each subject where a compulsory component is prescribed.
To register with the LEC, go to www.usyd.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.
september 2007 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.
LECTURes
Lectures will be given by Mr O'Brien and will be held on Monday nights in the Quadrangle Building, General Lecture Theatre N205 (Quad, GLT N205) commencing at 6.00pm on Monday 14 May 2007 at the Sydney University main campus. A map of the University of Sydney’s main campus showing the locations of this lecture theatre is included at the back of the Course Information Handbook. Please note that there is no lecture scheduled on Monday 11 June 2007 due to the Queen’s Birthday public holiday.
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 READING1
14 May / General and Introductory
2
21 May / Testimonial Evidence I / R v Apostilides (1984) 154 CLR 563
3
28 May / Testimonial Evidence II / R v Chin (1985) 157 CLR 671
MWJ v The Queen [2005] HCA 74
4
4 June / Documentary and
Real Evidence / Butera v DPP
Kozul v R
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11 June /
NO LECTURE
6
18 June / Relevance and
Discretionary Exclusion / Papakosmos v R
Ridgeway v R
Smith v The Queen
7
25 June / Hearsay / Lee v The Queen
Graham v The Queen
Study Break: Saturday 30 June 2006 – Sunday 8 July 2007
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9 July / Opinion Evidence / Smith v The Queen
Velevski v The Queen
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16 July / Admissions /
Mule v The Queen [2005] HCA 49 (8 September 2005)
1023 July / Tendency and Coincidence / Pfennig v The Queen
Phillips v The Queen
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30 July / Credit / Adam v The Queen
Goldsmith v Sandilands
12
6 August / Privileges / Esso Australian Resources Ltd v Federal Commission of Taxation
Commonwealth of Australia v Northern Land Council
13
13 August / Proof / Jenkins v The Queen (2004) 79 ALJR 252
Tully v The Queen (2007) 81 ALJR 391
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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 2 June 2007 - in Carslaw Lecture Theatre 159 (CLT 159)
12.10pm-1.10pm / General & Introductory
1.25 pm-2.40pm / Testimonial Evidence I / R v Apostilides
2.45pm-3.55pm / Testimonial Evidence II / R v Chin
MWJ v The Queen [2005] HCA 74
Sunday 3 June 2007 - in Carslaw Lecture Theatre 273 (CLT 273)
8am-9.20am / Documentary & Real Evidence / Butera v DPP
Kozul v R
9.30am-10.40am / Relevance & Discretionary
Exclusion / Papakosmos v R
Ridgeway v R
Smith v The Queen
10.45am-11.45am / Hearsay / Lee v The Queen
Graham v The Queen
Weekend School 2
TIME / MAJOR TOPICS / KEY READINGSaturday 28 July 2007 - in Carslaw Lecture Theatre 159 (CLT 159)
12.10pm-1.10pm / Opinion Evidence / Smith v The Queen
Velevski v The Queen,
1.30pm-2.40pm / Admissions,
Tendency & Coincidence /
Mule v The Queen [2005] HCA 49 (8 September 2005)
Pfennig v R,Phillips v The Queen [2006] HCA 4
2.45pm-3.55pm / Character & Credit / Adam v The Queen
TKWJ v The Queen
Sunday 29 July 2007 - in Carslaw Lecture Theatre 173 (CLT 173)
8am-9.20am / Privileges / Esso Australian Resources Ltd v Federal Commission of Taxation
Commonwealth of Australia v Northern Land Council
9.30am-10.40am / Proof / Jenkins v The Queen (2004) 79 ALJR 252
Tully v The Queen (2007) 81 ALJR 391
10.45am-11.45am / Revision / Examination Paper September 2002
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TEXTS AND MATERIALS
Course Materials
· Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials
· Odgers, Peden, Kumar, Companion to Uniform Evidence Law, Thomson Lawbook, 2004 (New edition due June 2007)
· Evidence Act 1995 (Cth) or (NSW)
Reference Materials
· Odgers, Uniform Evidence Law, 7th ed. Thomson Lawbook, 2006
· Criminal Procedure Act 1986 (NSW)
· Evidence (Children) Act 1997 (NSW)
· Aronson et al, Litigation: Evidence and Procedure, 6th ed. LexisNexis Butterworths, 1998 (out of print – check the Law Library)
· Heydon, Cross on Evidence, 7th ed. LexisNexis Butterworths, 2004
· Ligertwood, Australian Evidence, 4th ed. LexisNexis Butterworths, 2004
· Palmer, Principles of Evidence, Cavendish Publishing, 1999
· Roberts, Evidence, Proof and Practice, Thomson Lawbook, 1998 (currently, no stock- check the Law Library)
· Waight and Williams, Cases and Materials on Evidence, 6th ed. Thomson Lawbook, 2002
· Hunter Cameron & Henning, Litigation 2: Evidence & Criminal Process, LexisNexis Butterworths, 2005
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 on the Course Materials section.
ASSIGNMENT
In Evidence, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date (no extensions will be granted), and achieve a grade of at least 50%. The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.
If you do not achieve 50% or more in the compulsory assignment, you will be contacted by the LEC regarding your eligibility to sit the examination.
Completed assignments should be lodged through the LEC Webcampus by 9.00am on the following dates:
Compulsory Assignment / Friday 13 July 2007 / (Week 8)ASSIGNMENT QUESTIONS
To obtain a copy of the Evidence assignment questions for the Winter Session 2007, please follow the instructions below:
1. Register online with the LEC (see page 27 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.
2. Then go into the Webcampus, select the Course Materials section and click on the link to the Assignment questions for this subject.
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PRESCRIBED TOPICS AND COURSE OUTLINE
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1. General aspects
Odgers, Peden & Kumar, pp 1-3,
2. Forms of evidence
(1) Testimonial evidence
(a) Calling a witness
R v Apostilides (1984) 154 CLR 563
Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 (OPK 5-6)
R v Kneebone (1999) 47 NSWLR 450 (OPK 6-14)
Velevski v The Queen (2002) 76 ALJR 402 (OPK 14-18)
(b) Competence and compellability
Evidence Act, ss 12-20
R v Brooks (1998) 44 NSWR 121 (OPK 20-23)
R v Gulam Mohammad KHAN (unreported, Sup Ct, NSW, Hidden J, 22 November 1995) (OPK 24-28)
Glasby [2000] NSWCCA 83
Evidence (Children) Act 1997
(c) Sworn and unsworn evidence
Evidence Act, ss 21, 24
(d) Questioning of Witnesses
Evidence Act, ss 26-31
GPI Leisure Corp Ltd v Herdman Investments (No 3) (1990) 20 NSWLR 15 (OPK 28)
R v Esposito (1998) 45 NSWLR 442 (OPK 31-40)
Gradidge v Grace Bros (1988) 93 FLR 414
(e) Evidence in Chief
Evidence Act, s 37
(ea) Refreshing memory
Evidence Act, ss 32-35
R v Da Silva [1990] 1 All ER 29 (OPK 41
(f) Cross-examination
Evidence Act, ss 40-42
Picker v The Queen [2002] NSWCCA 78
(fa) The rule in Browne v Dunn
Evidence Act 1995, s 46
Browne v Dunn (1893) 6 R 7 (OPK 77-84)
R v Birks (1990) 19 NSWLR 677 (OPK 85-87)
Payless Superbarn v O'Gara (1990) 19 NSWLR 551 (OPK 87-92)
MWJ v The Queen [2005] HCA 74
(g) Re-examination: re-opening and rebuttal
Evidence Act, ss 39, 46
Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 (OPK92-95)
R v Chin (1985) 157 CLR 671 (OPK, 95)
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (OPK 97-99)
(2) Documentary evidence
Evidence Act, ss 47-51
Butera v DPP (1987) 164 CLR 180 (OPK 107)
R v Cassar, R v Sleiman [199] NSWSC 436 (OPK 110-112)
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
(3) Real evidence
Evidence Act, ss 52-54
R v Ivan Robert Marko MILAT (unreported, NSWSC 12 April 1996) (OPK 115-117)
R v Neilan (1991) 52 A Crim R 303 (OPK 118)