1. Marking criteria and exemplars

2. Marking criteria – Assessment 2
Identification and explanation of legal issues and composing clear, concise advice that address the actual question posed (i.e. avoidance of non –issues
Specific position / argument / perspective on advice to client
Facts linked to relevant case law and legislation
Explanation of the law
Evidence of ability to plan and apply legal research strategies
Evidence of legal research and quality of sources
Providing a critical and / or comparative analysis of cited judgments and legislation
Be able to apply written conventions of English
Presentation of paper
Referencing

3. Assessment 2 Checklist Do I have a coversheet?
Have I answered all of the parts of the question?
Have I read the marking criteria in the subject outline to make sure that my assessment is meeting the criteria?
Have I run a spell-check?
Have I proofread my work?
Is all of my work properly referenced using AGLC3?
Do I have a bibliography in AGLC3 format?
Have I formatted the assessment correctly according to the subject outline requirements?
Is my word count within +/-10% of the word limit?
Have I run my assessment through Turnitin?

4. Exam – marking criteria
Identification and explanation of legal issues and composing clear, concise advice that address the actual question posed (i.e. avoidance of non –issues
Specific position / argument / perspective on advice to client
Explanation of the law
Evidence of legal research and quality of sources

5. Activity – sample exam question
What is meant by ‘novus actus interveniens’ in criminal law? Explain the concept in your own words.

6. Sample response
One of the elements that must be proved in relation to the offences of murder and manslaughter is that the accused caused the death of the victim, either by an act or an omission. The term ‘novus actus interveniens’ literally means “new intervening act”. An issue that may arise in relation to proving that the accused caused the death of the victim is whether there was a novus actus interveniens that meant that death was caused by something other than the act or omission of the accused.
A case that explains the concept is the case of Royall v R (1991) 172 CLR 378. In the case of Royall, the victim either jumped, fell or was pushed out of a bathroom window and fell 6 floors to her death. Prior to the fall, the accused had physically assaulted the victim and they had been arguing. The victim locked herself in the bathroom and the accused forced his way into the bathroom. The question arose as to whether or not the accused caused the death of the victim.
In relation to the issue of causation, the Court considered the authorities and various tests that had been applied. The Court endorsed the “substantial cause of death” test, finding that if the victim fears danger and attempts to escape and injure themselves in the process, the accused is still taken to have caused the death of the victim. The Court found that even if the victim is unreasonable in their conduct in their attempts to escape on an objective standard, this does not negate causation.
The case of Royall has continued to be applied, and in particular the language used by McHugh J of “substantial cause” in cases such as Arulthilakan v R (2003) 189 ALR 40.

7. Sample response
What are the public policy reasons for prosecuting offences in NSW. Explain any criticisms of the factors taken into account when prosecuting offences. Refer to relevant cases in your answer.

8. Sample Answer Look at ODPP Guidelines Discuss policy reasons from it
Criticisms have been raised in several recent high profile cases such as: Lynette Daly ( killing/ ); Man Monis – the Lindt café siege ( In terms of preparation of cases generally (
Then you would go on to explain your understanding of those criticisms linking them back to the ODPP document. While there are no correct answers for this question, the marks are based on bigger picture concepts, such as swift access to justice, the complexity between having a mixture of common law and statute based offences, right to silence, victims rights, the structure and purpose of the criminal justice system, the burden and standard of proof, and the presumption of innocence.
The actual exam question is based around policy as well, so while the underlying document for the question is different, you would be expected to touch on those bigger picture issues that shape policy.
Don’t get too hung up on these cases or where you will find them, the question in the actual exam is based on class materials, you will be able to answer it without outside research.