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Court Process, Evidence and Proof
ADVANCED COURT OBSERVATION VIEWING ASSIGNMENT – INSTRUCTIONS
Due: 9 pm, Tuesday 7 July 2020 (Moodle, Turnitin)
Value: 30% of your final mark for Court Process, Evidence & Proof
Word/Time Limit : 2000 words (3 a, b below) or (for the AV version (3c‐e below, 10 minutes)
Without a COVID 19 Pandemic and social distancing the CPEP mid‐session assessment would have
required students observe a criminal trial. For this term instead you must view the following a/v
recordings of a US trial, the 2011 prosecution of Dr Murray in relation to the death of Michael Jackson.
See https://en.wikipedia.org/wiki/California_v._Murray#Timeline_of_prosecution_case.
Murray v California
Go to: https://www.youtube.com/watch?v=nWIQnNG_jgk
[Conrad Murray Trial – Day 19, part 4 (Oct 28, 2011)]
https://www.youtube.com/watch?v=5ypBRO‐lnwQ [‘Murray wanted $5M for job’]
https://www.youtube.com/watch?v=JWLnAIL_5a4 [‘Michael Jackson collaborator testifies’]
https://www.youtube.com/watch?v=x‐VXLLWI5vs [‘Murray defense questions Kenny Ortega’]
1. You must view the witness examinations from the AV recordings from Murray v California hyperlinked
below.
2. There are two parts to the assignment. You must respond to both parts of the question, explaining all
the relevant Australian law and procedure, placing it in the context of this case as if it was in NSW.1
3. You can choose to respond to both parts2 by
a. a report (or it could be in the form of a judgment)3
b. a poster (relying on a PowerPoint e.g. https://business.tutsplus.com/tutorials/free‐powerpoint‐
poster‐templates‐‐cms‐32219)
c. a short audio recording
d. a short AV recording, or
e. an audio ppt presentation.
4. This is a group assignment (details below).4 Record students’ names for your group on Moodle (well)
before 1/7/20 (Group formation).
5. Include a bibliography – including any articles, books or cases not in the textbook or materials.
6. In your assignment you should develop a critical analysis of the episodes of witness examination
you describe. The analysis of your observations for each part should include:
A form of introduction clearly addressing the topic and explaining your overall
argument/perspective in relation to each part.
1 Take great care that you do not assume US legal language, practice or law applies. You should display your knowledge of the rules
of evidence and procedure relating to witness questioning, the assessment of credibility, fundamental trial principles and
professional obligations, and proof. Your commentary should also draw on academic and/or judicial commentary applicable to the
episode(s) of questioning that you observed.
2
If you wish, you can do one part of the question with one format, and the other part with a different format (length
limits apply pro rata).
3
Part 2 is required to be in the form of a judgment (it can still be by PPT, audio, poster etc).
4 If you really cannot work in a group, discuss this with your teacher. Depending on your circumstances, you may be able to do the
assignment alone.
1
a brief description of the courtroom questioning. You can include the hyperlink, and the time clock,
or some of the actual exchange between witness and questioner, but do not devote excessive space
to transcription/re‐enactment.
a critical analysis and/or commentary responding to the two parts of the question.
You must apply the New South Wales law of evidence and procedure. Both parts of the question relate to
witness examination in the Murray v California over two days ‐ the 29 September 2011 and/or 28 October
2011. The two parts of the assignment are of equal value. With your total Word limit: 2000 words/10
minutes you might wish to apportion the words unequally: e.g. Pt 1, approx. 800 words; Pt 2, approx.
1200 words. It is up to you and your group to work this out.
PART 1 View the examination in chief or of cross‐examination of all the witnesses. Then choose one
witness (from Dr Waldman, Paul Gongaware or Kenny Ortega) and analyze at least one aspect of
examination in chief OR one aspect of cross‐examination of the witness you have chosen, responding to a
theme from one of the below quotes from FEW (No2) or M v R. You might choose to pick an exchange
about any of the questioning by counsel (it can involve an exhibit e.g. medical records, a chart, previous
statement). Whatever you choose, your critical analysis must respond to one of the quotes below.
PART 2. Hypothetical variation of facts: You must choose a part of witness questioning not addressed in
Part 1. 5 Using the factual scenario from this trial and only the information from the hyperlinked
questioning overleaf, provide a hypothetical example that introduces a new fictional item of evidence that
has the potential to impact on the credibility of one of the three witnesses or on the accused, Dr Murray.
You must provide legal advice on the evidentiary and procedural issues that this item of evidence raises.
Your answer should be in the form of a judicial ruling.
OOOOOOOOO
Quotes for Part 1
I am conscious of the need to be cautious and considered before drawing too ready a
finding (either in favour of a witness or adverse to them) from their demeanour in the
witness box. I accept that different people react to a courtroom environment in different
ways and that some coping mechanisms might give the appearance of disinterest, on
the one hand, or nervousness and agitation on the other, without necessarily reflecting
adversely on a witness’ credit. I am also conscious that a concern about one aspect of a
witness’ evidence, whether as to their truthfulness, accuracy or reliability, need not
necessarily justify my rejecting the evidence of that witness in its entirety.
FEW (No 2) [2013] NSWSC 177, [282] Fullerton J (p 30, Class 1 supp materials)
It is the everyday experience of the courts that honest witnesses are frequently in error
about the details of events. The more accounts that they are asked to give the greater is
the chance that there will be discrepancies about details and even inconsistencies in the
various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’s
evidence by analysing the discrepancies and inconsistencies in his or her accounts of an
incident. In a case where accuracy of recollection is vital — such as the account of a
conversation in a fraud case or the description of a person where identity is the issue —
discrepancies and inconsistencies in the witness’s account may make it impossible to
accept that person’s evidence, no matter how honest he or she appears to be. But in
other cases, discrepancies and inconsistencies may be of far less importance if the
honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a
jury thinks that the demeanour of the witness or the probability of occurrence of the
witness’s general account is persuasive, they may reasonably think that discrepancies or
even inconsistencies concerning details are of little moment.
M v R [1994] HCA 63; (1994) 181 CLR 487, 534 per McHugh
5 If you chose Examination in Chief in Part 1, you must choose Cross‐examination in Part 2 (and vice versa).
2
Relevant law for this assignment and additional research
The focus of this assignment is on fundamental evidence and procedure rules and principles, including
proof, professional obligations, witness questioning and the admissibility of evidence relevant to
assessing the credibility of witnesses. That is, the focus is on ss 12‐46, 55‐57; 101A‐108C, 135‐137, and ss
140 ‐ 144 of the uniform Evidence Act (UEA or UEL) and any other relevant procedural rules relating to
witness questioning and professional obligations.6 You should refer at a minimum to relevant sections,
cases, and secondary materials (including the textbook) from the course. You should develop the critical
analysis of your observations and, where necessary, clarify your understanding of the relevant rules.
Reading beyond the textbook – no more than one or two articles please, though you are at liberty to
research UEA caselaw beyond the textbook, course materials. Remember, your focus is on displaying an
excellent understanding of the relevant UEA provisions, the relevant case law.7 Citations can be informal,
but they must be clear, e.g. UEA, s 20; or Dyers (2002).
Marking Criteria
Your Advanced Court Viewing Assignment will be assessed on the extent to which the response:
focuses and develops analysis throughout the answer
accurately analyses the relevant law [ss 12‐46, 55‐57; 101A‐108C, 135‐137, and ss 140 – 144 UEA]
demonstrates strong understanding of fundamental trial principles, including as relevant, the role
of the judge, prosecutor and/or defence
develops its own perspective, typically combined with demonstrated critical analyse of issues and
observations
demonstrates breadth, depth and sophistication of understanding of the relevant course content
o Illustrates or supports analysis or argument by relevant cases, articles or books, or links to
events or a topic. Note, you are not required to go beyond the legislation and cases
referred to in the course, but such additional sophistication by supporting primary or
secondary sources demonstrates breadth and depth of understanding.
accurately and precisely uses language and expression that is clear, well‐structured, and proofed.
Do not engage in academic misconduct (plagiarising, inappropriate ‘consultations’ outside group:
https://student.unsw.edu.au/plagiarism . It is a serious breach of academic integrity to do this.
Further ‐ under NO circumstances should assignments in any form be posted online to a publicly
accessible web platform (such as YouTube).
If you plagiarise, or inappropriately ‘consult’, or you post your video/audio online on a website that is
accessible to the public (outside of your group and your lecturer(s)) you will be referred to the Faculty
Ethics officer and/or the Head of School. Your grade may be affected. This stipulation with respect to
posting online continues to apply after T2 2020.8
Format of the Assignment
Group Formation
You may form a group with students from other classes with the same lecturer, but not beyond. All
students in the group will receive the same mark. We recommend planning your group work carefully. A
useful guide to Group work can be found here: https://student.unsw.edu.au/groupwork. A Group
Formation tool is available on Moodle for you to record the members of your group.9
6 Any admissibility or procedural issues not covered in weeks 1 – 4 should be no more than mentioned. They are not the focus of
this assignment. Witness questioning and the credibility rule (and exceptions) are the focus of this assignment. Discuss with your
lecturer(s) if you are concerned about the appropriate direction of your assignment or you have questions about specific
rules/topics.
7 You should cite sources you actually access and use.
8 The assignment is about real people, and even though there is a fictional dimension (in fact, because there is a fictional
dimension), it is important your assignment is not distributed beyond your teacher and group.
9 If you initially formed a pair/group that subsequently splinters and reconfigures into new groups before the submission date you
should inform your lecture (in case Turnitin shows up unusual similarities between assignments).
3
This assignment is not like a general essay on witnesses and/or witness questioning, demeanour etc. It is
targeted and focused. This means its contents can be disjointed or episodic. However, your analysis
should be developed fully. All formats can be creative (diagrams, pictures etc).
A 10% leeway for the word or time limit is permitted for this assignment, however penalties for
exceeding these limits by more than 10% (200 words or 60 seconds) will be imposed in accordance with
the UNSW Law Assessment Policy. These limits are not affected by the size of the group.
Format 1: Report or Poster
The minimum number of students for formats 3 a & b is two & the maximum number is three.
The word length for the Report or Poster is 2000 words. The word limit will be calculated by reference to
all the text in the body of the report. Footnotes that contain only citations or other references are not
included in the word count.
Format 2: short film, audio recording, audio PowerPoint
The minimum number of students for formats 3 c & e is two & the default maximum number is
three, but with written approval, five students can make up a group where technology demands
more hands on deck.
You may opt to make a short film or audio recording (or any other audio‐visual format). Film and audio
assignments should be no more than ten minutes in length.10 You must submit a transcript that includes
references and your bibliography. Credit sequences at the end of the audio/video are not included in the
time limit.
Procedure for Submission of Assignments
You must submit your report, pdf of the PowerPoint, or the transcript through Turnitin by the submission
deadline: 9 pm, 7th July 2020, by online submission via Moodle/Turnitin. Penalties for late submission can
be found in the Law School Assessment Policy.
For alternative formats, you must upload the recording to a secure shared drive or folder (One Drive,
Dropbox) by the same deadline. There must be a written version of each assignment.
Include all names of your group on your hard copy and on any electronic recording.
10
If you use an audio and/or PowerPoint format, as a rule of thumb the time limit will be prioritised (instead of the
word limit).
4