Law students routinely forget that the legal tradition has been concerned with fact finding for centuries. The entire body of evidence law has evolved for two important purposes: ensuring that the evidence presented to a court is legally admissible; and ensuring that the evidence presented to the court is reliable so that the tribunal of fact is able to draw conclusions about whether or not an alleged fact existed in circumstances where the tribunal of fact has not witnessed the event for itself. Legal reasoning is empirically grounded and draws upon centuries of human experience in the examination of materials of this kind. With that in mind, principles from evidence law can be used to help us to think about facts as part of the analysis of a legal problem. Indeed, turning your mind to the rich body of evidence law is essential. It is not possible in a book like this to engage with evidence law in any detail. Evidence law in Australia is comprehensively examined by several authoritative authors, to which the reader is referred to for detail.

The discipline of law is unique as a body of knowledge. It is both theoretical and applied. Abstract and concrete. Moral and amoral. Just and cruel. And at its heart is a moment in which the abstract is translated into concrete action, a process that depends on theoretical application to the physical world. That application is linked to the art of problem solving. Human beings are problem-solving animals. All of us possess skills and experiences that enable us to engage with obstacles and problems in life. A problem is characterised by some event, experience or situation where our usual methods of operating and achieving desired ends are slowed down, prevented from operating or simply no longer work in that environment. Failure to successfully navigate a problem creates a crisis, during which we engage in different forms of conduct and thinking to find a resolution. Crises operate on a spectrum. Some are life- threatening. Some are innocuous. But the underlying dynamic is much the same. Problem solving is an adaptive and evolved trait that humans share with other animals and that enables us to survive in changing environments.

Writing up your answer is shaped by context. As a student, you are often called upon to answer a problem question in a specific format, such as a memorandum or letter of advice, with the added complication of a word limit. Students are often not aware that the requirement to write in a particular manner, with specific limits, is a pedagogical tool intended to reflect the kinds of documents used in practice, along with the need to strike a balance between accuracy and brevity. Being able to write sharply is an important skill in practice. Practitioners are also restricted by context. By now you should have a sense that the process is a complex one, and part of the art of lawyering is being able to translate complexity in ways that different audiences need to understand the situation. A person without legal training needs to have things explained as simply as possible. A practitioner will need the necessary detail, but keep in mind that time is money, and verbose correspondence is unnecessary and not appreciated. A barrister will need all the relevant information presented in such a way that the issues and complexities are clear and sharply identified.

In this chapter the aim is to undertake something of a guided analysis of a problem and apply the principles discussed so far. To that end, let’s now return to the problem set out in Appendix A. For this exercise, it is useful to begin by making notes, both of the information within the hypothetical and of the law. Using the steps explored in the last chapter as a guide, simply begin by reading the hypothetical in Appendix A. Note the people involved, the event(s), and especially the question you have been asked. Make some notes on your initial thoughts, before looking back over the Chapter 5 context. Then begin a systematic examination of the information.

Problem solving is an art form, which takes years of practice, experience, a thorough understanding of the law, and a thorough understanding of human behaviour. This chapter presents some basic ideas to set you on the path. There are several steps involved in dealing with a problem. Please keep in mind that legal reasoning is not linear, although it can be. Much depends on the nature of the problem. It involves the ability to proceed in a linear, logical approach in some cases, and a universal, nomadic approach in others. In this chapter we look at strategies for problem solving. Up to now we have talked about way of thinking about law and fact in the context of a problem solving analytic. The discussion is then steered towards application. Two approaches are suggested: one basic, the other advanced. Both approaches are outlined here. The model you choose really depends on your purpose and the depth of analytical detail needed.

You will have seen that a significant part of legal reasoning is linked to interpretation, and that the law plays an important part in shaping the rules of interpretation. This is especially true in the interpretation of legislation, which forms most of the conceptual terrain in which contemporary criminal law is located. This chapter introduces some of the core concepts linked to statutory interpretation principles applicable to the criminal law. Please note that this is by no means a comprehensive review but serves as an introductory overview.

Law is an applied and theoretical discipline. To that end, the law must be applied to the facts available when assessing the alignment of the facts with the law. In this respect law is an empirical discipline, one that requires objective fact and law in association with one another in its application. Evidence must exist to establish fact, while law must exist to establish the rule structure. The relationship between law and evidence is unique, for it is not simply the existence of objectively present objects that will establish the fact – the fact in law is subject to further legal construction through the laws of evidence. One aspect of that process is an object or event that has actual existence may not, as a matter of law, be available to the decision maker because of legal invalidity. Hence the empirical foundations of law are based on admissible evidence rather than mere evidence. This will be considered in more detail in Chapter 3.