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70717 Evidence and Criminal Procedure

Warning: The information on this page is indicative. The subject outline for a particular semester, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

UTS: Law
Credit points: 6 cp

Subject level:

Undergraduate and Postgraduate

Result type: Grade and marks

Requisite(s): (70218 Criminal Law OR 70217 Criminal Law) AND 70417c Corporate Law AND (70517c Equity and Trusts OR 70516c Equity and Trusts)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
Anti-requisite(s): 71216 Law of Evidence

Handbook description

This subject is based around the provisions of the Evidence Act 1995. Students study aspects of criminal procedure, as well as the rules about the admissibility of evidence. Topics include arrest, bail, police interrogation, the right to silence, types of evidence and the thresholds to the admissibility of evidence including relevance, hearsay, opinion, credibility, character, tendency and coincidence, discretionary exclusions, directions and warnings. Students examine the law reform processes that underpin the rules in NSW and federal courts and study the interpretation of these rules in judicial decisions.

Subject objectives/outcomes

This subject will assist students to develop graduate attributes by pursuing the following learning objectives. Students will undertake class activities to practise their development of these attributes, and will complete a range of assessment tasks designed to assess their attainment of the identified attributes.

  1. Capacity to identify and apply rules of evidence, and standards of admissibility, particularly in problem-based scenarios. Graduate Attribute: Disciplinary knowledge; Analysis and evaluation
  2. Understanding of law reform processes, and the way in which it has transformed the rules of evidence and criminal procedure. Graduate Attribute: Critical thinking; Analysis and evaluation; Spoken and written communication; Legal research and technological literacy
  3. Demonstrated skills in legal research, analysis, and critical thought about aspects of legal doctrine.Graduate Attribute: Critical thinking; Lifelong learning
  4. Understanding of the way that criminal processes and evidentiary rules operate upon different participants, stakeholders and communities. Graduate Attribute: Cultural awareness and a global outlook; Social justice

Contribution to course aims and graduate attributes

The UTS, Faculty of Law has identified a number of professional attributes that graduates from the Faculty will possess upon graduation.

INTELLECTUAL
1. Critical Thinking: An appropriate level of independent thinking, creativity and critical analysis.
2. Analysis and Evaluation: An ability to strategically analyse issues of law, evaluate options and viewpoints to reach and implement decisions.
3. Spoken and Written Communication: Advanced oral and written communication skills.
4. Legal Research and Technological Literacy: Appropriate research techniques to acquire, distil and utilise legal information.

PROFESSIONAL
5. Disciplinary Knowledge: A coherent and extensive knowledge of substantive and procedural law.
6. Lifelong Learning: A capacity to continually update the knowledge skills and awareness appropriate to the practice of law.
7. Ethics: A capacity to value and promote honesty, accountability and ethical standards.

PERSONAL
8. Self and Cooperative Work Management: Self and priority management skills including cooperative work.
9. Cultural Awareness and a Global Outlook: An appreciation and valuing of cultural and intellectual diversity and an ability to function in a global environment.
10. Social Justice: An acknowledgement and acceptance of individual responsibilities and obligations and of the assertion of the rights of the individual and the community.

Teaching and learning strategies

Strategy 1 Applying knowledge to problem-based scenarios
Strategy 2 Developing knowledge through independent research and thought
Strategy 3 Evaluating the law from the perspectives of different participants in the process
Strategy 4 Observation of criminal procedure and evidentiary processes

Subject Delivery
The subject is taught through one weekly lecture (90 minutes) and one weekly tutorial (90 minutes). Students are expected to attend lectures and tutorials each week, and must take responsibility for their own learning.

Students are expected to have read the required materials before each class. The questions listed each week are to guide your reading; they are not necessarily an indication of the content of each class.

Students are also expected to use UTS Online, where they will have access to subject documents, additional information, and a discussion board. Students are expected to use the Discussion Board – which will be monitored by teaching staff – to pursue their learning and develop their arguments.

Students will each undertake two compulsory forms of assessment: one assignment (50%), and one formal examination (50%). See Assessment and Exams, below.

The timetabled activities for this subject can be found on the UTS timetable online at http://timetable.uts.edu.au. Students enrolled in this subject can view their personalised timetabled in My Subject Activities online at https://mysubjects.uts.edu.au.

Content

  1. Introduction to Criminal Procedure
  2. Arrest and bail
  3. Proof, presumptions, inferences
  4. Relevance
  5. Privilege
  6. Witnesses
  7. Credibility evidence
  8. Documents and real evidence
  9. Hearsay and admissions
  10. Opinion evidence
  11. Tendency and coincidence evidence
  12. Character evidence
  13. Exclusion of evidence
  14. Judicial warnings, comments and directions about evidence

Assessment

Assessment Item 1: Assignment

Weighting: 50%

Assessment Item 2: Final Exam

Weighting: 50%

Required texts

  • Jeremy Gans and Andrew Palmer, Uniform Evidence, 2010, Oxford University Press.

Available from Co-Op Bookshop. Second-hand copies may be available from students who studied Evidence in previous semesters. A limited number of books is available for loan from the Subject Coordinator for students experiencing financial hardship. An announcement will be made in the first lecture.

  • Evidence Act 1995 (NSW)

Accessible via Austlii. The NSW and Commonwealth Evidence Acts are very similar. Any relevant differences will be pointed out in lectures. Ensure that you have access to at least one of them (or, alternately, see Recommended Text, below).

Recommended texts

  • Odgers, Uniform Evidence Law, Thomson Lawbook Co. Currently in 10th edition, but updated regularly. This is the key text used by all court practitioners. It is an annotated, section-by-section analysis of the Evidence Act, and it has been updated to take account of the amendments that commenced in 2009.
    • The UTS Library has an electronic subscription to this book, much trickier to use than the book although the most up-to-date source. Students can access it free via the Library catalogue, at: http://www.lib.uts.edu.au/drr/19487/

References

These additional texts, available in the Library, are excellent resources that can guide your research and revision:

  • Kumar M, Odgers S, Peden E, Uniform Evidence Law, Commentary and Materials, (3rd edition), Thomson Reuters Lawbook Co. 2009

This teaching and practitioner text contains commentary and materials on the Uniform Evidence law. This text has been updated to embrace the recent amendments. There are copies in the Library.

  • Heydon, Cross on Evidence (8th Australian edition), LexisNexis Butterworths, 2009

Another popular reference text, written by a serving Justice of the High Court of Australia, which contains commentary on the rules of evidence. This text has been updated to embrace the recent amendments. There are copies in the Library.

  • Findlay M, Odgers S and Yeo S, Australian Criminal Justice (4th edition), Oxford University Press, 2009

Another popular practitioner and teaching text which contains commentary on the rules of evidence and criminal practice and procedure. This text has been updated to embrace the recent amendments. There are copies in the Library.

Other resources

The NSW Evidence Act is one of a collection of uniform Evidence Acts in various Australian jurisdictions. The following reports contain a wealth of research, issues, consultations and proposals, and you should consult them regularly for a deeper understanding of the issues.

  1. Australian Law Reform Commission Final Report 102 (2005), in conjunction with the NSW and Victorian Law Reform Commissions: http://www.austlii.edu.au/ au/ other/ alrc/ publications/ reports/102/
  2. Australian Law Reform Commission Discussion Paper 69 (2005), in conjunction with the NSW and Victorian Law Reform Commissions: http://www.austlii.edu.au/ au/ other/ alrc/ publications/ dp/69/
  3. Australian Law Reform Commission Final Report 38 (1987) http://www.austlii.edu.au/au/other/alrc/publications/reports/38/ALRC38.html
  4. Australian Law Reform Commission Interim Report 26 (1985) http://www.austlii.edu.au/ au/ other/ alrc/ publications/ reports/26/

The following books and articles provide accessible perceptions of criminal trial process in Australia. They are only a small selection of what exists, and these ones are all available at UTS Library.

  • Kate Rossmanith, "The Work of Judges: Tough-on-crime advocates all rise", The Monthly, September 2012, accessible at: http://www.lib.uts.edu.au/drr/33377/
  • Chloe Hooper, The Tall Man, Hamish Hamilton, 2008
  • Helen Garner, Joe Cinque's Consolation, Picador, Pan Macmillan, Sydney, 2004
  • Michelle Schwarz, One Split Second, UNSW Press, Sydney, 2006
  • John Bryson, Evil Angels, Penguin, 1986
  • Malcolm Knox, Secrets of the Jury Room, Random House Australia, 2005
  • Paul Sheehan, Girls Like You, Pan Macmillan, 2006.

There are plenty of films, documentaries and TV programs informed by criminal procedure and evidence, and much to enjoy in this genre. The following documentary offers a compelling account of criminal procedure, evidentiary processes, and a real-life trial in the United States. It is available for loan in the UTS Library, and some have reported that it is available online. Perhaps organise a screening weekend amongst yourselves?

  • The Staircase, Hopscotch Entertainment, 2005. (3 DVDs, 513 minutes).