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Faculty of Law
2016-2017
EVIDENCE I
LLAW 3102
September 2016
Janice Brabyn
© 2016
COURSE OUTLINE
Students who actively prepare for and participate in this introduction to the law of
evidence will be able to:
4. Describe the basic legal rules controlling the admissibility and use of oral,
documentary, digital and real evidence in criminal and civil trial proceedings
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”
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
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
Please note:
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.
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)
4. Legislation
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.
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
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
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