LAWS 50037 Evidence & Proof

Take Home Examination

Stream:AssociateProfessorJeremyGans
Availableonlineandforcollectionfrom
theMelbourneLawSchoolStudentCentreafter4.30p.m.,Friday1stJuly
Tobesubmittedelectronicallyandinhardcopyto
theMelbourneLawSchoolStudentCentreby10.30a.m.,Monday4thJuly

EXAMINATION RULES

1. This take-home exam is subject to all the rules governing assessment in the law faculty and
the university. It is your responsibility to be aware of all those rules, including the rules on
academic misconduct. Students doing the Evidence & Proof take-home are subject to the same
guidelines on extensions and special consideration as students undertaking a supervised exam.
2. This examination represents 100% of your total assessment for this subject.
3. There is one question, which must be answered in its entirety.
4. In preparing your answer, you may consult any printed or written material.
5. The exam question may be discussed with other students, but joint work is not permitted. In
particular, you are not permitted to collaborate with anyone else in writing an answer to the
exam; view another persons written notes about the exam or their draft or final versions of an
answer to the exam; permit another student to view your written notes about the exam or
your draft or final versions of an answer to the exam; make written notes of what anyone else
says to you during the exam; or permit another student to make written notes of what you say
during the exam.
6. Under no circumstances should the lecturer be approached or contacted once the exam
paper has been released. If you have a query about an aspect of the paper, which you think
needs to be resolved in order for you to answer a question, please contact the Melbourne Law
School Student Centre and state what the query is and why you think it needs to be resolved.
Do not contact the Melbourne Law School Student Centre about any typographical errors or
obscured words in the documents in the brief of evidence. Just analyse those errors or
problems, as appropriate, in your answer.
7. The word limit is 5000 words. However, Marking Code 3 will apply to this examination, but you
will not lose any marks for exceeding the word limit. Instead, you will be marked based on the
criteria set out in the instructions.
8. All papers must be submitted in hard copy with a cover sheet to the Melbourne Law School
Student Centre. Fax and e-mail copies will not be accepted. A penalty for late submission will
be imposed in the following way: For the first 2 hours late (or part thereof) a 5% reduction
applies. For every hour late (or part thereof) after the first 2 hours, the penalty increases to a
10% reduction. The cover sheet can be downloaded or collected from the LMS student centre.
9. All prose parts of your answer must also be submitted electronically via the Evidence &
Proof LMS webpage.
10. Read the instructions very carefully. Be sure to check that you have complied with these
rules and all the instructions before submitting your paper.
INSTRUCTIONS

Your instructions are to prepare an advice on whether the evidence detailed in the attached brief
can establish the case that Robert Farquharson deliberately drove the car into the dam. Your
advice must consist of:
A statement of a factual theory of the case given the evidence in the brief. You must select a
factual theory that best satisfies the criteria listed at pp 46-51 of the Proof text. You must
perform this task without considering the effect of the law of evidence.
A description of how the evidence can be rationally used to prove the case during a trial,
consistently with your theory. You must use the brief to identify, with precision, documentary
or real evidence and testimony from living witnesses (whether you know their names or not)
that could be available in a future criminal trial to assist in proving the case. Then, arrange the
case youve been given and the anticipated trial evidence, together with intermediate factual
propositions that you have devised (consistently with your factual theory) so that they have the
logical relationship described in p69 of the Proof text, i.e.: If the factual proposition at the
bottom of the connecting line is true then this makes it more likely than it would otherwise
have been that the proposition at the top of the connecting line is true.. Ensure that the logical
relationships you assert are clear and plausible; if they arent, then you will need to add more
information to clarify your argument. Explain the relationship between different chains of
inferences, i.e. whether separate chains that lead to the same factual proposition are
conjunctive or not (see pp 75-77 of the Proof text.) You must perform this task without
considering the effect of the law of evidence.
An evaluation of the impact of the law of evidence on the proof you have described. You
must consider the Victorian law set out in the Evidence text, together with the statutory
materials you have been given and identify any rules that might affect your proof. Then state
precisely how and why those rules will or will not affect your proof if it was offered in a future
criminal trial where Farquharson is the defendant. Where the application of the law will
depend on the views of a trial judge, you must explain what she will consider and how the issue
ought to be resolved. When the outcome depends on the existence of other facts or the
occurrence of particular events in the trial, identify those contingencies and explain what
follows from them. You are not required to cite, identify or analyse the sources of evidence
law. Just explain and apply the law as you understand it. If the law on a point or the factual
context is unclear, then simply analyse how and why that ambiguity matters.
Your advice must be divided into three sections corresponding to the above three tasks.
Otherwise, you may express yourself however you want, using words, diagrams or whatever and
you can - and are encouraged to - use a mixture of formats. Whatever works best. Avoid repetition
by making clear reference to the brief or your earlier discussion as necessary. Avoid verbosity by
redrafting so that your answer is clear and concise. Given the time constraints, you will not be able
to cover every aspect of the issues raised by the brief in your advice. Instead, focus on the issues
that are likely to be of greatest significance in any future trial (i.e. factual propositions that are
especially likely to be significant and chains of reasoning that are likely to be crucial to the proof of
the case.)
You will be assessed solely on your effectiveness in performing the tasks set out above. Your mark
will be based on both the quality of your analysis of the pertinent issues that flow from the brief
and your effectiveness in communicating that analysis consistently with these instructions.
Roughly half of your marks will be based on your analysis of the effect of the law of evidence (i.e.
the third task.)
MOTIVATION
Robert Farquharson has been tried and convicted twice for the murder of his three children. His
first trial (applying Victorias then common law of evidence) was successfully appealed: see R v
Farquharson [2009] VSCA 307. His second trial occurred after the commencement of the Evidence
Act 2008 and an appeal is pending. If Farquharson wins that appeal, then the DPP faces the
quandary of whether or not to try him a third time. One option may be to opt for a pared-down
prosecution consisting of a smaller number of witnesses and exhibits. This exam can be seen as a
test of the viability of that option.

SPECIAL INSTRUCTIONS
The documents in this brief concern real people and a tragic event. They have been provided on the
strict condition that they are only used for the purposes of study in this course. Please appropriately
limit your use of the brief to doing the exam and do not show or distribute the documents to anyone
else
The subject-matter of the exam has already been the subject of an appeal judgment, which discusses
some factual and legal questions that may come up in your answer. That appeal judgments is on Austlii
at <http://www.austlii.edu.au/au/cases/vic/VSCA/2009/307.html>. There are also other judgments
concerning the case available online. You dont have to read them. If you do, bear the following
carefully in mind:
o You must take your own approach to the factual and legal issues. You must answer in your
own words.
o The judgment (and anything else you find on the net) isnt part of the brief of evidence, so
make sure your answer addresses the brief youre given.
o The judgments approach is based on the evidence available to the court and (in the case of
the first trial) Victorias common law, rather than the brief and the current law of Victoria
o Theres no reason to think that the Victorian courts take on the facts or law is a particularly
good one or even a correct one. It is certainly not comprehensive and instead reflects the
arguments put to it. Your answer in question 3 requires you to argue the point yourself,
rather than to cite precedents such as the appeal judgment.
You should assume that the photos in the brief were all take by Victorian police employees in the days
after the deaths.
You can research general facts (e.g. the layout of Winchelsea); however, you should otherwise restrict
your analysis of the case to the evidence in the brief.
You should not draw any inferences from any markings, highlighting or annotations on the brief.