Posted: April 28th, 2015

Advice on Evidence Assignment

5194LAW Evidence Law;2015 Advice on Evidence Assignment

Your task:  You have been asked to provide an advice on evidence about the information which is available to your (fictional) client in a potential trial.

You will be provided with:
•    General instructions; and
•    Scenario instructions.

Based on that information, you must advise your client what items or information could become evidence in the accused’s trial and any relevant evidentiary rules, law, practices and procedures which relate to the potential evidence.  Please include careful explanations of the relevant law relating to evidence in your advice.

As to format, you have been provided with an article by Kylie Downs on giving an advice.  It may assist you to write your assignment.

Please read:
•    The general instructions below, set out as if they were from a fictional legal source, asking for your advice on evidence
•    The scenario instructions, which tell you whether you are acting for the Prosecution or the Accused and the facts that the case is based on.
•    The assignment instruction on pp 4-8, which give you full details of submission and other rules which will apply to this assignment.

Memo to: You

Memo from: Instructing solicitor

Subject:          General instructions – advice on evidence

¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬
You are instructed to prepare an advice on evidence in relation to this matter and the facts on the following scenario page.  You will be informed of the identity and details of the crime by Friday 27 March 2015, or earlier when you nominate your hearing partner.

We anticipate that the matter will proceed to trial.  To assist in preparation for trial, please advise us on:
•    Based on the information provided, what evidence could be presented at a trial in the matter by either side?  How are those items relevant?
•    What problems or challenges could arise with the evidence (ie what issues could each side raise about the evidence)?
•    What steps, if any, may you or the other side have to take to make particular evidence admissible or usable in court?
•    What items would be inadmissible?
•    Any other evidentiary issues raised by your instructions.
Please explain any legal issues arising from the law of evidence in detail.  All objects mentioned in the scenario are available for production at trial.  Any living people mentioned are able to appear at the trial if needed.
Additional Information:
In addition to the scenario facts, items and information, we have the following additional information.
When the accused was arrested, they initially refused to talk to police.  When the accused arrived at the police station, the accused asked for a lawyer.  The nominated lawyer was called and the accused was placed in a holding cell.
One of the other prisoners at the watch house, Taylor McDonald, was a known informant.  When approached by officers, Taylor agreed to go into the cell with the accused and see if the accused would say anything which might be a confession.  Taylor had the following conversation with the accused:
Taylor McDonald (TM):  Did you hear the cops talking out front?  Someone in here is in for a major crime.
Accused (A):  I didn’t hear anything.  They just fingerprinted me, took all my stuff and stuck me in here.  Look at this filthy ink on my hands.
TM:  Well, don’t say anything to them and they won’t get anything.  I’ve been here before and I’ve seen how they work.  People like us get pushed around too much by the cops.
A: I haven’t said anything, just asked for a lawyer.
TM: You don’t look the sort who would have anything to tell anyway.  I can tell the tough ones from the others.
A: You might be surprised. [Taylor claims that the Accused gave a knowing smirk at this point]
TM: You never.  The cops will try to get it out of you.  They have all sorts of tricks.  You got to be real careful if you actually did anything.  They have all those CSI tricks, you know.
A: They’ll never pin anything on me. I’m way too careful.  They won’t be able to find any evidence against me. [Taylor says the Accused gave another smirk]
The accused denies smirking and says that the comments meant there was no evidence because the accused had not committed the crime.
The accused’s lawyer arrived soon after.  After conferring with the lawyer the accused gave the following short statement to police:
Accused’s statement to police:
I have not committed any crime.  I know nothing about the events that you have accused me of being involved in.  I know nothing about the objects that you say link me to this crime.  I was nowhere need the crime scene at the time you say I must have been there.
I refuse to undertake any further interviews with police or to answer any further questions by police.
After this matter was reported in the local press, a woman named Tina Chung came forward to say that she had seen the accused near the crime scene at approximately the time the police think the crime occurred.  The police interviewed her and made the following written statement from her:

My name is Tina Chung.  I was walking my Great Dane dog nearby at approximately the time of the crime.  I saw someone who looks like the person in the newspaper article and was identified in the article as the accused.  The accused was in a distressed/anxious state and was running away from the area.

I called “Are you OK?  Don’t be afraid, the dog is friendly.”  Some people are afraid of my dog because she is so big.

The accused turned around, made a gun shape with their hand at me and said “You didn’t see me.  If anyone asks, you didn’t see me.”

I thought the situation was very strange, so it stuck in my memory.  When I read about the crime on the news, I came forward and volunteered this statement to the police.

Signed: T Chung

The accused has denied that the accused is the person that Tina saw.

The scene of the crime was investigated by Senior Sergeant Andrew Mbuto.  Snr Sgt Mbuto documented all of the events in his police notebook.  It is the basis of the short scenario instructions summary that you have been given below.

Police have taken all the identified items into their custody and want to use them as evidence.

Assignment Instructions

1.    Due Date: This assignment is due Monday 4 May 2015 at 11.59 p.m.

Extensions and Late Submission of Assessment Items

Please direct requests for extensions to Joanne Stagg-Taylor. You must submit an official request for an extension online, via the Griffith Portal.  However, as the official online process can sometimes take some time to send the request to your convenor, we require that you also submit a direct request to the convenor on [email protected]. An extension will only be granted under the conditions in the Griffith University Assessment Policy (i.e. in exceptional and compassionate circumstances, where documentary evidence is provided).  If your convenor has not confirmed your extension in writing prior to the due time and date, you may be penalised for late submission of the assignment.

The demands of your employment do not constitute grounds for extension.

Holidays and vacations, including overseas holidays or holidays planned by family members or someone other than you do not constitute grounds for an extension. (Please feel free to submit the assignment before your holiday, if you may be affected by vacation circumstances.)

Students who submit assessment items late without prior approval for an extension will be penalised under paragraph 3.11 of the Griffith University Assessment and Submission Return Procedures, which provides:

3.11 Penalties for Late Submission
An assessment item submitted after the due date, without an approved extension, will be penalised. The standard penalty is the reduction of the mark allocated to the assessment item by 10% of the maximum mark applicable for the assessment item, for each working day or part working day that the item is late. Assessment items submitted more than five working days after the due date are awarded zero marks.

To confirm this means that the following penalties will be imposed if submit your assessment late without an extension:
•    Up to 24 hours late: 3.5 mark penalty
•    24 – 48 hours late: 7 mark penalty
•    48-72 hours late: 10.5 mark penalty
•    72-96 hours late: 14 mark penalty
•    Items submitted over 96 hours late, but before 11.59pm Monday 11 May 2015: 17.5 mark penalty
•    Items submitted after 11.59pm Monday 11 May 2015: 0 marks

All penalties are removed from the mark that you would otherwise be awarded for the work (eg if you get 25/35 and are 2 days late (7 mark penalty), your final mark will be 18/35.

2.    Word Limit: 2,500 words, not including footnote references and the reference list. Assignments that do not comply with the word length will be penalised according to the following formula:
i.    0-10% excess: no penalty;
ii.    11-30% excess: 15% of the total marks available;
iii.    31-50% excess: 30% of the total marks available; and
iv.    51% plus excess: 50% of the total marks available.

Please include your final word count on the front of your paper.

3.    Submission: You must submit your essay electronically via the Turnitin portal on the Evidence Law Learning@Griffith site (via the Assessment folder).

If you have any difficulty submitting your assignment via Turnitin, please email it to your Course Convenor before the due time and date.

Electronic submission: Enter the Learning@Griffith site for 5194LAW and go into the Assessment folder and then into the Advice on Evidence Assignment folder. In there, you will see an Assignment icon with the title “Advice on evidence assignment submission” and a link saying “View Assignment” below it. Click on that link and submit your assignment.

Please do not email the Course Convenor asking whether your assignment has been submitted properly or not. If it is submitted properly you should get an onscreen notification saying so. Otherwise, please submit it again, get help from IT Assist, or email your assignment to the Course Convenor.

NB: Markers will be on the lookout for plagiarism. Turnitin is only one mechanism used to identify suspect papers. Make sure that you reference sources properly and do not improperly collaborate.

4.    Referencing: You must use:
The Australian Guide to Legal Citation (3rd ed):

http://mulr.law.unimelb.edu.au/files/aglcdl.pdf .

You must use pinpoint references.

For clarity, you may not use an in-text referencing system (such as the APA Referencing system). Footnoted citations do not count towards the word count, but extraneous material does.

Please ensure that you include a Reference List at the end of your paper.

Failure to properly reference your work using the above system will be reported as suspected academic misconduct.

5.    Gen e r a l In f o r m a t io n: The Griffith University Assessment Policy applies to this assessment.

See: http://policies.griffith.edu.au/pdf/Assessment%20Policy.pdf

6.    Academic Misconduct: Academic misconduct is treated very seriously by Griffith Law School.

Our policies are stringent as we are a professional faculty bound by professional requirements. Academic misconduct includes inappropriate collaboration, cheating and plagiarism. All Law students are expected to be familiar with Griffith University Assessment Policy.

If the course convenor identifies a possible breach of academic integrity by a student, the course convenor will notify the University’s Academic Integrity Manager, who keeps a central record of all cases of academic misconduct. Depending on the seriousness of the breach, the AIM will refer the possible breach to the course convenor or to the Chair of the Law Assessment Board for further action or decision. Serious penalties may be imposed for breaches, including a fail for the course or exclusion from the program (see Law School Assessment Policy, paragraph 4.3).

Plagiarism: Plagiarism is defined in the Griffith University Institutional Framework for Promoting Academic Integrity Among Students as occurring ‘when the work of another is represented, intentionally or unintentionally, as one’s own original work, without appropriate acknowledgement of the author or the source.’: [2.4].

Examples of plagiarism listed in paragraph 2.4 include –

1) collusion, where a piece of work prepared by a group is represented as if it were the student’s own;
2) acquiring or commissioning a piece of work, which is not his/her own and representing it as if it were, by:
a. purchasing a paper from a commercial service, including internet sites, whether pre-written or specially prepared for the student concerned;
b. submitting a paper written by another person, either by a fellow student or a person who is not a member of the University;
3) duplication of the same or almost identical work for more than one assessment item;
4) copying ideas, concepts, research data, images, sounds or text;
5) paraphrasing a paper from a source text, whether in manuscript, printed or electronic form, without appropriate acknowledgement;
6) word for word copying, cutting or pasting statements from multiple sources or piecing together work of others and representing them as original work;
7) submitting as one’s own work all or part of another student’s work, even with the student’s knowledge or consent

Paragraph 2.4 of the Framework also confirms that ‘A student who willingly assists another to plagiarise (for example by willingly giving them access to their own work) is also breaching academic integrity, and may be subject to disciplinary action.’

Inappropriate Collaboration:
This assessment is “individual work” and so inappropriate group collaboration to produce the answer would be academic misconduct.

In respect of any item of assessment, a student may:
•    discuss with other persons the issues raised by the item of assessment;
•    discuss with other persons possible means by which to address issues raised by the item of assessment
•    collaborate in the location of, and share, sources of information relevant to the item of assessment; and
•    ask for assistance from a member of the teaching team for the course in question.

For this assignment, a student must not:
•    collaborate with other students, or other persons, in planning the format or structure of the student’s submission for that item of assessment;
•    collaborate with other students, or other persons, in the writing of all or a part of the student’s submission for that item of assessment;
•    collaborate with other students, or other persons, in the writing of all or a part of any other student’s submission for that item of assessment;
•    provide a copy of his or her work in respect of that item of assessment to another student, irrespective of whether that work is complete or has not been finalised;
•    accept a copy of the work of another student in respect of that item of assessment, irrespective of whether or not that work is complete or has not been finalised, and irrespective of whether or not the student changed his or her own work after having accepted the work of the other;
•    accept a copy of the work of a student who has undertaken a substantially similar item of assessment at an earlier time at this or another University, irrespective of whether or not the student changed his or her own work after having accepted the work of the other;
•    offer to give comments of any sort on the draft or final work of another student at any time prior to submission by the other student;
•    ask for comments of any sort on the student’s draft or final work at any time prior to submission by the student.

Students who are uncertain about how to use source materials or about referencing requirements are encouraged to seek clarification from any member of the teaching team.

If you are found to have committed any form of Academic Misconduct this may affect your entitlement to practice as a lawyer.