LAW4323: Evidence

100% Exam OR 60% Exam & 40% Research Assignment (2000 words)

One of the harder core units, Evidence has some interesting areas but is also quite legislation heavy. In that sense it's kinda like Corps, albeit maybe slightly tougher. Equity & Trusts are probably also harder, but that's about it. However, Evidence is not a substantive area of law, and like the easier Civil Procedure/Ethics units, is adjective in nature. There's a little bit of overlap between the three, particularly in Privilege topics, although I wouldn't recommend doing more than two of them at once as it would probably be too much in terms of dry procedural content.

Quick topic run through:

Relevance: This is the first hurdle for evidence to be admissible. Fairly brief topic, doesn't really come up on an exam question per se, you usually just mention it in a sentence or two at the start.

Competence and Compellability: Quite a few legislative sections here, but it's not too complicated and is mostly just a case of 'follow the Evidence Act'. There are distinct rules for criminal and civil trials, e.g. higher thresholds or special provisions in criminal cases, this being a recurring consideration in the unit. Broadly the course is civil & criminal applicable, although much of the case law is criminal due to the higher stakes & specific/higher threshold provisions (probably a good unit to try and do well in if you're an aspiring criminal lawyer).

Privilege: Long legislation heavy topic that has some overlap with Ethics/Civil. A number of different privileges here - against self-incrimination, client legal privilege, settlement negotiations, exclusions in the public interest, & confidential communications re: sexual offences. Usually a more straightforward topic, exam-wise.

Examination of Witnesses: Again, mostly Evidence Act stuff. Not that complicated, but can seem a bit abstract, it'd probably make more sense if you were in court watching it play out.

Character and Credibility: I think the complexity of this one is a bit underrated. It's not actually to apply law to facts, it's more that the law in the area is kinda intricate in terms of moving around a lot between EA provisions. Helps to make a flowchart (with links to the Examination topic), I think.

The Accused's Right to Silence: Criminal area, fairly straightforward. There used to be some complicated sections, but those have thankfully been done away with. This year they were still learned & were somewhat relevant to policy, but I'm not sure if they'll stay on in 2016+.

Tendency and Coincidence Evidence: Maybe the most interesting topic, but also a complex one that can be hard to apply to the facts. This section is basically about trying to admit evidence of similar fact based on a 'tendency' or [lack of] coincidence (e.g. trying to try a whole bunch of sexual offence cases at once, because the circumstances/MO etc. are very similar). The cases are pretty much all criminal, and are sometimes quite controversial. This is one of those areas where if you're in a criminal case, you have to satisfy an added requirement for admissibility, here - 'Does the probative value of the evidence substantially outweigh prejudicial effect?'. This is the kinda grey area thing that is hard decide on looking at the facts, but for which you can pick up some good marks with a solid discussion & analogising with case facts. Bound to come up in an exam.

Hearsay: I agree with pretty much everyone else - this is the most complicated topic. I don't think it's quite as bad as the death-trap it's made out to be, but it can be hard to get your head around, and contains exceptions to exceptions. You've got a general rule against hearsay evidence, but then you've got a number of different exceptions which actually carve out quite a bit of space for which you may be able to get your evidence admitted. Figuring out what level (1st hand, 2nd hand) of hearsay you have on the facts is probably the tougher bit, but once you've applied the wordy EA sections on that and come to a conclusion, it's just another case of 'follow the EA steps and see which category you end up in, and then apply the rules/thresholds of the category'. Bound to come up in an exam.

Admissions: Criminal area concerning statements made against interest (i.e. confessions/partial confessions), has fairly interesting cases. Not too complex, ripe for policy questions in particular.

Illegally Obtained Evidence: Overlaps a bit with the above. There's a balancing act here in terms of level of illegality VS how useful is this evidence going to be, c.f. a more hardline USA position whereby 'the court won't eat the fruit of the poisoned tree'. Can come up in a question along with admissions, not uncommon for policy either.

Opinion Evidence: Smallish topic, has pretty straightforward rules about how laypeople can't give evidence about specialised areas when they aren't experts, and how experts are limited to subjects on which they actually are experts.

Discretion to Exclude Evidence: This is not a topic per se, but the courts always have discretions to exclude evidence where its probative value is outweighed (to some specified degree which is case-dependent) by its prejudicial nature. There are also various powers to give directions and warnings in certain circumstances. For some of these more general provisions, e.g. s135, s137 of the EA, I think it's easier just to lump them together at the back of your notes, and then include references to it in the specific topics.

I generally enjoyed this unit, even though some sections of it are dry/procedural/legislation heavy. The policy areas aren't discussed much, but are topical, and the cases are usually interesting, particularly if you like criminal law. In terms of the lecturers, I didn't attend any of Gideon's classes, but I went to pretty much all of Jonathan's, and would highly recommend attending his stream if you can (for this or crim). He breaks down the complexities of the course very well, and tries to keep all it light-hearted and entertaining.

Gideon Boas; Jonathan Clough

Yes, several

3.5 out of 5

Yes

Kumar M, Odgers S and Peden E, Uniform Evidence Law Commentary and Materials, 5ed
2015. Decent textbook, from memory it's quite expensive, but you're probably going to refer to it quite a lot. No need to buy any of the Acts, although some people liked to have a copy of the Evidence Act with them in the exam.

3hrs lectures, 1hr tutorial every 2nd week

S2 2015