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 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.The Adversary system Role: to provide a procedure for parties to present and resolve their case. 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: . rules – each party presents opening address The burden of proof and the standard of proof Rules of evidence and procedure . 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. in as fair a manner as possible. -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.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.

-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. 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 . 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. -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.Need for legal representation present their witnesses who are subject to three stages of questions Rules of evidence: evidence can be -oral evidence.

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 .makes sure the parties are treated fairly . with each party bringing out the facts to benefit their side.Role of the judge Burden and standard of proof Rules of evidence and procuedure Legal representation - The judge is impartial and: . 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 judge’s experience if some parties are poorly represented Adversary system is more concerned with winning.creates more confidence because they are an independent decision maker .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. rather than finding out the truth .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 .

Greater reliance on written evidence denies parties to test the evidence . Required to respond to the directions of the court. 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. 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. 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.The inquisitorial system Role of the parties: parties have a greatly reduced role. Reduces inequities b/w parties. All evidence is weighed up by the judge Witnesses are mostly called by the decision maker and not the parties. Places control of their case in the hands of a third party.

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. decide on the evidence and facts to be brought before the court Inquisitorial system Parties do not control their case. 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. parties initiation proceedings. investigate relevant law and evidence for the case.biased. Less effective in influencing the outcome Parties not able to call their own expert witnesses parties aren’t able to call their own expert witnesses Too much power in the hands of one individual (the judge) separation of roles of judge. 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. but respond to the directions of the court .

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.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. This issue was investigated by the ALRC in 2005 to reduce complexity of . Judge conducts directions hearings to see if matters can be resolved before going totrial. they could be relaxed to allow other useful info to be put to the court that may affect the outcome of the case.

This is improved by Aboriginal Liaison Officers and the Koori Court. e. witnesses may tell their own version of the facts uninterrupted. language difficulties and costs. with less direct questioning. and the judge will clear up ambiguities . 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. more valuable use of judge’s 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. which is often expensive. judge helps the parties to reach solutions. saving the time and inconvenience to witnesses and the legal system.the rules and achieve uniformity between Commonwealth and State courts. the evidence would not be able to be tested by the other party during cross examination. Increased availability of Legal Aid would result in more people gaining access to legal rep. medical evidence instead of a medical expert witness. Legal representation A prominent criticism of the adversary system of trial is that it relies heavily on 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. and the inability to locate interpreters. Evidence Written statements of evidence are used in committal hearings. 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. Further use of written evidence during trial such as medical reports and police reports could save court time and money. This is being trialed in the Family Court. expert opinion and client privilege.g. However. lack of knowledge or understanding. 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. The rules under review were hearsay.

the rules of evidence and procedure are followed. 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.• 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. 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 .

whether the evidence is of sufficient weight to support a conviction by a jury at trial. 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. Remand: when a person is held in custody awaiting a trial. This hearing forms part of the committal proceedings. 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. during a trial or awaiting sentence . that is.      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.

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. 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.aimed at public.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. (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 . CRIMINAL SANCTIONS Punishment: retribution and revenge Deterance: general. works as specific deterrence does not rehabilitate. protect and denouncing may occur through extremely high fines.

Accused will have limited resources and expertise. Resources – prosecution evidence is gathered by the police who are experts with time and resources devoted to the purpose. Trial procedures – may be confusing for accused (esp.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. Ensures reliability of the witnesses Consistency in sentencing – independent of all prejudices. more culturally sensitive outcome Problems o o o o o Bail – accused may be placed on remand. Each side can examine witnesses. putting them on equal terms with the prosecution Police investigation – balanced against individual rights. Direct indictment – Effective access to the legal system Elements    Courts – available for all to use. Gives them time to prepare case = same rights as prosecution Committal proceedings – enables accused to learn of the prosecution’s case against them. means equal treatement Role of the judge – independent and impartial arbitrator at the hearing. Appeals – means an incorrect or unfair decision can be appealed Legal Aid – can offer legal advice and representation to people charged . Bias – media coverage may make it difficult to find jury members who have not already formed an opinion. Both sides treated equally before the law. Ensures the matter is heard by someone not bias Rules of evidence and procedure – apply to both parties. The koori court – This court hears guilty pleas with the assistance of indigenous elders equals a fairer. helping prepare defence. without legal rep). treating everyone according to the facts of the case only. Speciliasation.

high cost of engaging legal rep. Hand-up brief results in fewer traumas for the accused. not to submit to an unlawful police search. Many people do not receive assistance. 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 - . May not know they have the right to remain silent. Legal aid has limited funds. Timely resolution of disputes   Committal proceedings – accused do not have to wait a long time for a trial when prima facie doesn’t exist. summary offence hearings must be heard within 12 months. Financial constraints.Problems o 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. Courts not being clogged up. committal proceedings two months after committal mention hearing. a trial must commence 3 months the date the accused was committed for trial. Time limits – committal mention hearing 3-6 months. Problems o o o o o Collection of evidence – difficulty collecting evidence.