Legal U4 AOS1

Terminology:
Adversary system: The system of trial used in Australia in which two opposing
sides try to win the case. Set rules of evidence and procedure must be followed
and the judge is an impartial arbitrator
Burden of proof: The responsibility of proving who is in the wrong- this usually
lies with the person who initiates the action.
Inquisitorial system: System of trial in European and some Asian countries in
which the arbitrator of a dispute, the judge, plays an active role in examining and
investigating the case in orer to determine the truth of the matter in questions.
Propensity evidence: Propensity evidence is evidence that demonstrates the
accused has a tendency to commit the type of crime they are accused of. This
evidence can include prior convictions.
Standard of proof: The degree or extent to which a case must be proven. This
is beyond reasonable doubt for criminal cases, and on the balance of
probabilities for civil cases.
Effective legal system
Three principles
-

Entitlement to a Fair and unbiased hearing

Effective access to the legal system
Timely resolution of disputes

Fair and unbiased hearing: an effective legal system provides structures and
procedures that facilitate a fair hearing or trial, free from bias. People should not
be discriminated against and have equal opportunity to present their case.
Have in place set court processes, including rules of evidence and procedure, the
adversary system and the jury system. Judge and jury will be impartial.
Effective access to the legal system:
All people should be aware of their right to take a matter to a court, a tribunal or
other dispute resolution body, and have equal access to these legal bodies. This
is shown with a court hierarchy, or the alternative dispute resolution methods for
civil cases and through legal aid.
Timely resolution of dispute:
so compensations can be paid and stress caused will be as short as possible.
Should also allow parties to prepare appropriate cases and for all evidence to be
considered.

The Adversary system

Role: to provide a procedure for parties to present and resolve their case, in as
fair a manner as possible.
Major features of the adversary system of trial
The role of the parties

Parties control their own case and has

complete control over decisions about
how the case will be run as long as the
rules of evidence and procedure are
follow (Party control)
Responsible for:
- Instigating the proceedings
-Investigating the facts
-deciding which facts should be
brought before court
-investigating the law
-deciding whether to have a jury in a
civil case
-choosing whether to have legal
representation.

The role of the judge

-ensures that court processes and

procedures are carried out according to
strict rules of evidence and procedure
and each of the parties is treated fairly.
-impartial umpire
Responsibilities:
-ensures rules of evidence and
procedure are followed
-decides on questions of law
-clarifying issues
-directing the jury
-deciding questions of fact when there
is no jury
-deciding the sanction or remedy
Burden- which party has to prove the
facts of the case
standard: beyond reasonable doubt,
balance of probabilities
Rules of procedure: the framework in
which court cases can take place and
through which the court will try to bring
about a resolution to the case.
rules each party presents opening
address

The burden of proof and the standard

of proof

Rules of evidence and procedure

Need for legal representation

present their witnesses who are subject

to three stages of questions
Rules of evidence:
evidence can be
-oral evidence, given by witnesses I
nthe form of answers to questions
-given in the form of a sworn statement
(affidavit)
-in the form of an object
-audio material.
-circumstantial evidence
Protects parties by ensuring that:
-the parties are treated fairly
-the jury is not distracted by irrelevant
material
-unreliable or illegally obtained
evidence is not heard by the court
-evidence is not unduly prejudicial to
the accused
-no propensity evidence
-Prepare the case
-conduct the case
-experts in strict rules of evidence and
procedure.
-ensure parties present their best
possible case and to assist in achieving
a just outcome/
The truth should emergy through each
party presenting their own case to the
best of their ability and the other side
showing the flaws in the evidence
being presented through crossexamination.

STRENGTHS AND WEAKNESSES OF THE ADVERSARY SYSTEM OF

TRIAL
The role of the parties

Strengths
Parties are able to:
-fight their own battle
-engage legal
representation to present
their case in the best
possible light
-decide what facts are to
be brought before the
curt

Weaknesses
Party conrol can lead to:
-further animosity
-high cost of legal
representation
-delays that cause
hardship

Role of the judge

Burden and standard of

proof

Rules of evidence and

procuedure

Legal representation

The judge is
impartial and:
- makes sure the
parties are treated
fairly
- creates more
confidence
because they are
an independent
decision maker
- is independent of
the prosecution in
the criminal cases
or the parties in
civil cases
Party bringing the case
has to prove the facts to
the standard of proof
required

-oral evidence helps

reveal if the witness is
sincere
- the process of
examination-in-chief and
cross-examination allow
both parties to present
their cases and test the
evidence of the other
party
-all parties are treated
alike
-some types of evidence
are not permintted; this
is to protect the parties
Each party can choose
their own legal
representation, who will
present their case in the
best light

Judge cannot offer the

parties assistance. This
could be a waste of the
judges experience if
some parties are poorly
represented

Adversary system is
more concerned with
winning, with each party
bringing out the facts to
benefit their side, rather
than finding out the truth
- witnesses may be
intimidated and say
something misleading
-witnesses can only
respond to questions and
cannot tell their own
stories in their own words
-expert evidence could
be undult relied upon
-not all evidence may be
brought out
-the truth may not be
reached

The adversary system

relies on both sides being
equally represented so
the truth can come out.
Inferior legal
representation may
create a problem

The inquisitorial system

Role of the parties:

parties have a greatly reduced role. Required to respond to the

directions of the court. Reduces inequities b/w parties. Places
control of their case in the hands of a third party.

Role of the judge:

active role
investigating cases
defining the issues to be resolved
gathering evidence
objective is to find the truth of their matter.
Establish facts of the case (a dossier)
Question witnesses
Not restricted to issues at question in the trial

Burden and standard of proof

o No formal rules of evidence and procedure
o Objective is to find the truth
o Judge is responsible for bringing evidence and finding the truth
Rules of evidence and procedure
o Less reliance on strict rules of evidence and procedure.
o Witnesses are able to tell their stories
Role of legal representatives
o Much lesser role
o Assist the judge to find the truth
STRENGTHS AND WEAKNESES
Strengths
The decision maker takes a
more active roles in investigating
to find the truth. All evidence is
weighed up by the judge
Witnesses are mostly called by
the decision maker and not the
parties, therefore likely to be less

Weaknesses
Judge is less impartial than in
the adversary system
judge gets involved with all aspects
of the dispute and could be
influenced by outside issues.
Greater reliance on written
evidence
denies parties to test the evidence

biased.
Less reliance on legal
representation
important if one party is not well
represented
The decision-maker controls the
production of evidence: more
likely relevant evidence is brought
out.

The cost of an inquisitorial

system of trial is mainly borne
by the state
Accused is more able to defend a
matter in court and is less reliant on
funding

Main use of written statements

reduces the cost
-quickens proceedings thus
reducing cost

through cross examination.

Less effective in influencing the
outcome

Parties not able to call their

own expert witnesses
parties arent able to call their own
expert witnesses
Too much power in the hands of
one individual (the judge)
separation of roles of judge,
investigator and lawyers could lead
to a fairer outcome
Parties may feel at the mercy of the
investigating judge

Judge is aware of character

reports and past record
this could mean that biases are
formed against the accused that
could be outdated or inaccurate

Comparison between
Inquisitorial and adversary
systems
Role of the parties

Adversary system
Party control, parties
initiation proceedings,
investigate relevant law
and evidence for the
case, decide on the
evidence and facts to be
brought before the court

Inquisitorial system
Parties do not control
their case, but respond to
the directions of the
court

Role of the judge

Role of legal
representatives

Role of evidence and

procedure

Burden and standard of

proof
Primary objective

and the conduct of their

case (with the help of
legal representatives
Judge leaves the conduct
of the case to the parties.
Judge conducts directions
hearings to see if matters
can be resolved before
going totrial.
Judge may only call
witnesses to clarify
points
Vital
-investigate the case for
their clients
-bring the evidence into
court

Evidence collected by the

parties
Relies mainly on oral
evidence
strict rules of evidence
and procedure
Character evidence and
past record not usually
available
Witnesses respond to
questions

To allow parties to control

their own case and give
them an equal
opportunity to win

Judge takes an active role

-defines the issues of the
case
-controls the
investigation
-examins witnesses at
the trial

Not essential
-may ask witnesses
questions after the judge
has completed the
examination but must
obtain permission from
the judge
Evidence is collected by
judge
Relies mainly on written
statements
no strict rules of
evidence and procedure
Character evidence and
past record available
Witnesses tell their story
uninterrupted by
questions
No formal burden and
standard of proof
Inquisitorial system is
designed to get at the
truth

Possible reforms to the adversary system of trial

Rules of evidence
Whilst these strict rules of evidence exists in the adversary system to protect
parties from irrelevant or illegally obtained evidence, they could be relaxed to
allow other useful info to be put to the court that may affect the outcome of the
case. This issue was investigated by the ALRC in 2005 to reduce complexity of

the rules and achieve uniformity between Commonwealth and State courts. The
rules under review were hearsay, expert opinion and client privilege.
Evidence
Written statements of evidence are used in committal hearings, saving the time
and inconvenience to witnesses and the legal system. Further use of written
evidence during trial such as medical reports and police reports could save court
time and money. However, the evidence would not be able to be tested by the
other party during cross examination.
Judges
The current powers of judges could be increased to increase their involvement in
cases such as being able to call witnesses and ask them questions. This is being
trialed in the Family Court.
Legal representation
A prominent criticism of the adversary system of trial is that it relies heavily on
legal rep, which is often expensive. Increased availability of Legal Aid would
result in more people gaining access to legal rep, hence improving their
preparation of their case and their chances of winning their case.
Indigenous people and evidence
There are a number of factors that limit Indigenous people's capacity to use the
legal system such as cultural differences, lack of knowledge or understanding,
language difficulties and costs, and the inability to locate interpreters. This is
improved by Aboriginal Liaison Officers and the Koori Court.

Improvements to the Adversary System Summary

Case flow management where the judge takes a more active role in
determining the speed at which matters should be dealt with

Directions Hearings allows a judge to take more control of the case in

criminal and civil matters; judge helps the parties to reach solutions; more
valuable use of judges expertise
Suggested Improvements to the Adversary System

Greater investigative role for the judge/magistrate judge may ask

questions and call witnesses and thus assist in the process of determining the
truth

Greater use of written statements saves court time and money; e.g.
medical evidence instead of a medical expert witness; Hand-up brief method
now used in committal proceedings

More informal conduct of the trial greater use of tribunals where parties
reach resolutions more quickly and there are no strict adversarial court
procedures; witnesses may tell their own version of the facts uninterrupted, with
less direct questioning, and the judge will clear up ambiguities


Reduce delays court officer could be appointed to oversee pre-trial
procedures and to investigate any undue delays incurred

Greater availability of legal aid legal aid funds augmented; perhaps a

reduction of means testing

Effectiveness of the
adversary system
Entitlement to a fair and unbiased hearing
FEATURES:

Party control
Independent arbitrators
ensures both parties are treated fairly, the rules of evidence and
procedure are followed, decide all questions of law and can make
decisions on the facts brought before them
Rules of evidence
ensures hearsary and propensity evidence are not allowed
Rules of procedure
helps ensure the truth will come out through the parties to a case being
given equal opportunity to bring out evidence
Right to silence
allows accused not to incriminate themselves
Legal aid

PROBLEMS
o
o
o
o
o
o
o
o

Vital evidence that might be inadmissible

Witnesses or the accused who might have difficulties with language might
be disadvantaged
Interpreters may misinterpret evidence
Legal representation costing too much
Legal aid possible not being available
Being nervous or incertain affecting evidence
Magistrate or judge may have personal biases
Jury may have biases

Effective access to the legal system

Features

Get assistance through legal aid

Have an opportunith to take a matter to court

Have access to legal representation

Can use alternative methods of disputre resolution in civil cases
Can be ordered to participate in mediation
Can take civil matters to a tribunal
Have rights during police investigations to protect them from unfair
treatment
Presumed innocent until proven guilty

Problems
o
o
o
o
o

Need for legal representation in the adversary system may lead to some
parties not persuing their civil claim, due to costs involved
An accused person many not be able to afford suitable legal rep
Representing yourself is a disadvantage
Difficulties with language and understanding legal processes
People many not be aware of avenues of access to the legal systems

Timely resolution of disputes

Features:

Minimise delays during the trial

Reduce delays in the pretrial process through the directions hearings
Cut out the committal hearings in a criminal case
Provide systems such as mediation in civil cases to speed up the process
and assist in achieving a resolution

Problems
o
o
o

Parties in civil cases may not meet deadlines for pretrail prodecures
Pretrial procedures in a civil case are long and time consuming
Need for interpreters can delay a criminal case coming to court

Criminal procedure
Bail: the release from custody of a person accused of a crime and awaiting a
hearing or trial, on an undertaking that the person will attned the hearing or trial
committal hearing: a hearing held in the magistrates court for an indictable
offence to asses whether a prima facie case exists; that is, whether the evidence
is of sufficient weight to support a conviction by a jury at trial. This hearing forms
part of the committal proceedings.
Remand: when a person is held in custody awaiting a trial, during a trial or
awaiting sentence

Purposes of criminal pre-trial procedures

Assist the police

identifying evidence
Protect the rights of the accused
innocent until proven guilty
Provide rights to the police
facilitates investigation
Provide an opportunity for the accused to be released pending trial
Clarify issues
Determine whether a trial should proceed
prima facie
Determine the accused plead.

CRIMINAL SANCTIONS
Punishment: retribution and revenge
Deterance: general- aimed at public. Specific aimed at offender
rehabilitation
denunciation
protection
Guidelines for sentencing
-

Maximum penalty
Nature and gravity of the offence
Person circumstances of any victim
Offenders plea
Offenders previous character

SANCTIONS
FINES: punish, works as specific deterrence
does not rehabilitate, protect and denouncing may occur through extremely high
fines.
Community correction orders
a supervised sentence served in the community and includes special conditions
such as treatment and upaid community work for a specified number of hours.
(two years magistrates and the statutory maximum term of imprisonment)
conditions
-does not commit another offence
-reports to community correction centre
-notifies an officer of a change address
Punishment: as it is a demand on the time of the offender
specific deterance: work may put the offender off reoffending
protect: occupies an offender at times when they may be committing crimes
rehabilitate: programs are provided to assist the offender to move away from
criminal behaviour

Imprisonment
detained in jail, loss of freedom and liberty
Punishment and protection as it keeps serious criminals out of society
rehabilitation: various programs offered to prisoners
denunciation: long sentences
specific and general deterrence
Effectiveness of criminal procedure
Fair and unbiased hearing
Elements

Bail upholds presumption of innocence as an accused person is released

from custody until their trial. Gives them time to prepare case = same
rights as prosecution
Committal proceedings enables accused to learn of the prosecutions
case against them, helping prepare defence, putting them on equal terms
with the prosecution
Police investigation balanced against individual rights, means equal
treatement
Role of the judge independent and impartial arbitrator at the hearing.
Ensures the matter is heard by someone not bias
Rules of evidence and procedure apply to both parties. Each side can
examine witnesses. Both sides treated equally before the law. Ensures
reliability of the witnesses
Consistency in sentencing independent of all prejudices, treating
everyone according to the facts of the case only.
The koori court This court hears guilty pleas with the assistance of
indigenous elders equals a fairer, more culturally sensitive outcome

Problems
o
o

o
o
o

Bail accused may be placed on remand.

Resources prosecution evidence is gathered by the police who are
experts with time and resources devoted to the purpose. Accused will
have limited resources and expertise.
Trial procedures may be confusing for accused (esp. without legal rep).
Bias media coverage may make it difficult to find jury members who
have not already formed an opinion.
Direct indictment

Effective access to the legal system

Elements

Courts available for all to use. Speciliasation.

Appeals means an incorrect or unfair decision can be appealed
Legal Aid can offer legal advice and representation to people charged

Problems
o
o

Geography distance and transport can affect access to legal services

Awareness of legal rights people need to know their legal rights to
gain effective access. May not know they have the right to remain silent,
not to submit to an unlawful police search.
Financial constraints- high cost of engaging legal rep. Legal aid has
limited funds. Many people do not receive assistance.

Timely resolution of disputes

Committal proceedings accused do not have to wait a long time for a

trial when prima facie doesnt exist. Courts not being clogged up. Hand-up
brief results in fewer traumas for the accused.
Time limits committal mention hearing 3-6 months, committal
proceedings two months after committal mention hearing, summary
offence hearings must be heard within 12 months, a trial must commence
3 months the date the accused was committed for trial.

Problems
o
o
o
o
o

Collection of evidence difficulty collecting evidence, locating

witnesses or suspects may refuse to cooperate
Committal proceedings may add to the delays
Lack of sufficient court resources resources have not kept pace with
the growth in the number of cases in the courts
Changes in sentencing laws
Court workload -