Vous êtes sur la page 1sur 9

UNIVERSITY OF HONG KONG

Faculty of Law

2016-2017

EVIDENCE I
LLAW 3102

COURSE OUTLINE AND SCHEDULE

September 2016

Janice Brabyn
© 2016
COURSE OUTLINE

LEARNING OUTCOMES FOR EVIDENCE I

Students who actively prepare for and participate in this introduction to the law of
evidence will be able to:

1. Appreciate the core function of relevance arguments in modern evidence

2. Identify facts in issue in a relatively straightforward hypothetical factum and


develop their own relevance arguments with respect to given items of
evidence and those facts in issue

3. Distinguish between relevance, admissibility, weight and judicial discretion

4. Describe the basic legal rules controlling the admissibility and use of oral,
documentary, digital and real evidence in criminal and civil trial proceedings

5. Define and identify straightforward opinion evidence, hearsay evidence,


evidence relating to the credibility of witnesses and character evidence.

6. Describe and apply the special substantive and procedural rules relating to
the admission of opinion evidence, hearsay evidence (including confession
evidence in criminal trials), character evidence

7. Describe and apply to given facts the basic elements of legal professional
privilege and “without prejudice privilege”

8. Identify core requirements for jury instructions for: burdens of proof,


circumstantial evidence, eye-witness identification evidence, character
evidence, opinion evidence, hearsay evidence, confession evidence

9. Apply basic evidence doctrines to relatively straightforward hypothetical


problems, particularly in the criminal law context.

10. Read evidence related cases and extract from them the facts in issue,
relevance and admissibility arguments, and alternative positions of parties and
judges with respect to underlying principles, policies and application of judicial
discretion.

11. Appreciate the current and potential impact of human rights issues in the
area of evidence policy and practice

12. Sensibly discuss the underlying reasons for current and proposed evidence
related rules and procedures.
TEACHING/ LEARNING METHODOLOGY

The course will be taught by weekly two hour lectures and bi weekly tutorials.

Lecture

Evidence 1 (All students) Tuesday, 4:30pm – 6:20pm CPD 3.04

Tutorials

Groups
Evidence 1, 2 Wednesday 12:30pm – 2:20 pm CCT 3.01
Evidence 3, 4 Wednesday 2:30pm – 4:20 pm CCT 3.01
Evidence 5, 6 Thursday 6:30pm – 8:20 pm CPD 2.46

Teachers

Ms Janice Brabyn (JB) 3917 2918 hrllbjm@hku.hk


Mr Billy Kwan (BKwam) billykky@yahoo.com
Mr Arthur Lee (Arthur) arthurlee@alsc-chambers.com
Ms Jenny Ngai (JNgai) jennyshngai@gmail.com
Mr Jeffrey Sze (JSze) jeffreysze@gmail.com

Approach to Teaching and Learning

This course emphasizes:

(i) identification of legal principles and relevance arguments from primary


materials;
(ii) disciplined application of principles/ relevance/ rights conscious approaches
to factual hypothetical problems.

Please note:

1. All material included in the class outlines, designated reading, class


exercises/ problems and power points is prima facie examinable but not all
material will be recovered in class.

2. Pre class preparation for this course is essential.


Class participation in large classes is encouraged.
Tutorials will be totally interactive. Students will be expected to answer questions,
solve problems and participate in group discussion and feedback. Students who come
to class without having done the required reading and exercise preparation will have
difficulty in (i) following the class and (ii) pulling their weight in terms of group
discussion.
In tutorials of this kind, each student is both learner and teacher.
Therefore, the quality of each student’s learning experience depends upon
that student’s own preparation and the preparation of others.

3. MOODLE This course uses the University’s MOODLE system to foster a


community of learning. MOODLE will be the main vehicle of communication between
lecturer and students outside the classroom. Class notices, session outlines, Power
Point slides, the reading materials, and the midterm and District Court Visit
assignments will be loaded onto MOODLE.

Specifically, weekly reading assignments, including class outlines, background


materials and primary materials/ articles for this course will be posted on Moodle.

Students should refer to the MOODLE site at least three times per week,
always just before class to ensure up-to-date information.
What topics are covered?

The course covers the major topics typically included in an introductory evidence
course: relevance, admissibility, residual discretion, competence and compellability,
refreshing memory, attacking credibility, prior statements, character evidence, similar
fact evidence, opinion and expert evidence, hearsay, confessions, consciousness of
guilt, exclusion of evidence for violations of human rights, and legal professional
privilege.

The emphasis in this course is on admissibility and use rules, not trial procedure.
However, a full understanding of these rules and their rationale requires a basic
appreciation of trial procedures and practices. Consequently, students are advised to
gain some knowledge of trial procedures early on in the course.

Reading materials
1. Class discussion and formal assessment will be based on distributed materials.
Reliance on textbooks will NOT be sufficient – or required.

2. Professor Simon Young’s Hong Kong Evidence Casebook is not a required text
(Some of the older cases are now misleading and the most relevant cases in
the book will be included in your materials) but the book does contains useful
commentaries.

4. Textbooks generally can provide useful structure and perspective. In addition


to the required reading, students may wish to consult relevant sections of one
or more of the following books, all available in the HKU law library:

D.M.A. Hubbard & M. McConville, Hong Kong Law of Evidence (2nd ed)
Andrew L. T. Choo, Evidence (OUP: Oxford)
I.H. Dennis, The Law of Evidence (London: Sweet & Maxwell)
A. Keane, P. McKeown, The Modern Law of Evidence (OUP: Oxford)
Roderick Munday, Evidence (OUP: Oxford)
Richard Glover & Peter Murphy, Murphy on Evidence (OUP: Oxford)
Colin Tapper, Cross & Tapper on Evidence (OUP: Oxford)
P. Roberts & A. Zuckerman, Criminal Evidence (Oxford: OUP)

Note: English law concerning a defendant’s right to silence, bad character


evidence and hearsay is now very different to HK law. Later editions are
still generally preferable but post 2003 English texts should be treated
with caution with respect to substantive law in these areas.

4. Legislation

Relevant provisions in the Evidence Ordinance (Cap 8), Criminal Procedure


Ordinance (Cap 221), Hong Kong Bill of Rights Ordinance (Cap 383), Crimes
Ordinance (Cap 200) will be referred to from time to time.
ASSESSMENT

Final Examination: 60%


Midterm Test: 35%
District Court Visit Report 5%

Final Examination: three and a half hour problem based fully open book written
examination (½ hour reading time included).

Midterm Test: A take-home problem based examination released the Friday before
Reading Week and submitted to MOODLE on the first Monday of Reading
Week, ie 17 October 2016.

District Court Visit Report:

All students are required to attend contested District Court civil and criminal
proceedings for a period of at least 6 active court hours at times of their choosing
during the semester. Students must then complete and submit a short report about
their experience. District Court Visit Instructions and Report forms are available
online. Students are required to record (i) dates and times of their court attendances
and (ii) any evidence related points of interest observed during the visit. Students
will also be required to sign a declaration to the effect that the student did indeed
attend and observe the proceedings stated.

The District Court Visit is intended to provide an incentive for students to watch the
processes of adducing evidence, objecting to evidence, rulings on evidence,
directions on discovery, expert evidence and so on … in other words, evidence as it
works in real life. It is hoped that this will assist students to place classroom learning
in context, achieving a better, more realistic understanding.

The District Court Report must be submitted via MOODLE by NOON, Friday
2 December, 2016.
COURSE SCHEDULE
Week Large Group TUTORIALS
#
September 6
Basic Principles NO CLASS
1
September 13 BASICS A
2 Witnesses I
Tues JSze 6:30 CPD 3.22 Gr
Evidence-in-Chief 10
Competence & compellability, leading questions, Wed JB 12:30 CCT 3.01 Gr 1
refreshing memory, hostile witnesses, prior consistent 3:30 CCT 3.01 Gr 3
statements, recent complaint, evidence of distress, Thurs JNgai 6:30 CPD 2.46 Gr5
vulnerable witnesses Thurs BKwan 6:30 CPD 3.21 Gr 9
Fri Arthur 6:30 CPD 3.21 Gr 7
September 20 BASICS B
3 Witnesses II
Wed JB 12:30 CCT 3.01 Gr 2
Cross-examination 3:30 CCT 3.01 Gr 4
Browne v Dunn, cross-examination attacking credibility, Thurs JNgai 6:30 CPD 2.46 Gr 6
collateral finality rule, previous inconsistent statements, Fri Arthur 6:30 CPD 3.21 Gr 8
sexual history shields.

September 27 WITNESSES A

(Relatively) Silent Defendants Wed JB 12:30 CCT 3.01 Gr 1


4 Pre-trial silence 3.30 CCT 3.01 Gr 3
Silence at trial Thurs JNgai 6:30 CPD 2.46 Gr 5
Warnings for Types of Evidence: Fri Arthur 6:30 CPD 3.21 Gr 7
Criminal Defendant’s Lies
Eyewitness Identification Evidence
October 4 WITNESSES B

Opinion Evidence Tues JSze 6:30 CPD 3.22 Gr 10


Wed JB 12:30 CCT 3.01 Gr 2
5 Lay Opinion Evidence 3.30 CCT 3.01 Gr 4
Expert Opinion Evidence Thurs JNgai 6:30 CPD 2.46 Gr 6
Expert Evidence in Civil Cases Thurs BKwan 6:30 CPD 3.21 Gr 9
Fri Arthur 6:30 CPD 3.21 Gr 8
October 11 PRIVILEGE:

6 Character/ Propensity Evidence I Tues JSze 6:30 CPD 3.22 Gr 10


Wed JB 12:30 CCT 3.01 Gr 1,2
Propensity Evidence Adduced by the Defence: Kong 3.30 CCT 3.01 Gr 3,4
Evidence of a Defendant’s Good Character: Thurs JNgai 6:30 CPD 2.46 Gr 5,6
Tang Siu Man Thurs BKwan 6:30 CPD 3.21 Gr 9
Fri Arthur 6:30 CPD 3.21 Gr 7,8
October 17 - 21
READING WEEK

Take Home Mid-Term Test

Test will be released on line on Friday, 14th October 2016, 5:00pm.


Submission through MOODLE must be completed by NOON Monday, 17th October 2016.

The midterm covers all material covered or assigned up to and including 4 October.
Ignore any suspected privilege, defendant’s character, hearsay or confession issues.

October 25
7 Character/ Propensity Evidence II CHARACTER/ PROPENSITY A

Incidental Evidence of Bad Character Wed JB 12:30 CCT 3.01 Gr 2


Prosecution Propensity/ Improbable Coincidence 3.30 CCT 3.01 Gr 4
Prosecution Cross-examination of Defendants Thurs JNgai 6:30 CPD 2.46 Gr 6
Co-defendant Cross-examination of Defendants Fri Arthur 6:30 CPD 3.21 Gr 8

NOTE: EVEN NOS. Groups FIRST!


November 1 CHARACTER PROPENSITY B
8
Hearsay I Tues JSze 6:30 CPD 3.22 Gr
10
Defining hearsay, Wed JB 12:30 CCT 3.01 Gr 1
Negative assertions, 3.30 CCT 3.01 Gr 3
Computer recorded information Thurs JNgai 6:30 CPD 2.46 Gr 5
Thurs Bkwan 6:30 CPD 3.21 Gr 9
Fri Arthur 6:30 CPD 3.21 Gr
7
November 8 HEARSAY PRESENTATIONS
Identifying Hearsay
Tues JSze 6:30 CPD 3.22 Gr 10
9 Hearsay II Wed JB 12:30 CCT 3.01 Gr 1,2
3.30 CCT 3.01 Gr 3,4
Implied assertions as hearsay Thurs JNgai 6:30 CPD 2.46 Gr 5,6
Exceptions to the hearsay rule Thurs BKwan 6:30 CPD 3.21 Gr 9
Fri Arthur 6:30 CPD 3.21 Gr 7,8

HEARSAY PRESENTATIONS
November 15 Hearsay Exceptions
Self-Incrimination & Confessions I Tues JSze 6:30 CPD 3.22 Gr 10
Wed JB 12:30 CCT 3.01 Gr 1,2
10 Privilege against self-incrimination, 3.30 CCT 3.01 Gr 3,4
Confessions as hearsay exceptions, Thurs JNgai 6:30 CPD 2.46 Gr 5,6
Residual discretion to exclude voluntary confessions Thurs BKwan 6:30 CPD 3.21 Gr 9
Fri Arthur 6:30 CPD 3.21 Gr 7,8
November 22
11 CONFESSIONS A
Confessions II
Wed JB 12:30 CCT 3.01 Gr 2
Judicial Discretion to Exclude Prosecution Evidence/ 3.30 CCT 3.01 Gr 4
Stay of Proceedings Thurs JNgai 6:30 CPD 2.46 Gr 6
Fri Arthur 6:30 CPD 3.21 Gr 8
Excluding Evidence/ stay of proceedings: Fair Trial
Excluding Evidence/ stay of proceedings: Integrity

November 29 CONFESSIONS B
12
Putting it All Together Tues JSze 6:30 CPD 3.22 Gr
10
Wed JB 12:30 CCT 3.01 Gr 1
3.30 CCT 3.01 Gr 3
Thurs JNgai 6:30 CPD 2.46 Gr 5
Thurs Bkwan 6:30 CPD 3.21 Gr 9
Fri Arthur 6:30 CPD 3.21 Gr 7

Vous aimerez peut-être aussi