Legal Studies - Adversary trial system

Module 1: Adversary trial system

Adversary trial system: definition

The adversary system [1] of trial is where disputing parties come before
an independent adjudicator to present their cases within set rules of
evidence and procedure. The outcome is based on the evidence presented
in court, and each party is responsible for the preparation and presentation
of their cases.

Features of the Adversary System of Trial

* Independent judge or magistrate.

* Parties individually responsible for their case preparation and

presentation.

* Strict rules of evidence and procedure.

* Presentation of cases through professional legal representatives.

* Single continuous hearing to resolve cases.

Note that trial by jury is not a key feature of the adversary method of
trial.

Strengths of the Adversary System

* Historical method of trial: has worked effectively for centuries.

* Most efficient method of trial: parties are responsible for cases and
therefore truth will emerge.

* Rules of evidence and procedure ensure neutrality and consistency in

dispute-resolution.
* Impartial adjudicators can best assess the merits of cases.

* Continuous hearings/trials ensure greater coherency and efficiency in

the trial process.

Weaknesses of the Adversary System

* Little attempt to discover the truth of legal proceedings.

* High costs as a result of the necessity of legal representation.

* Great reliance on oral testimony.

* Adjudicator is too inactive during trial proceedings.

* Excessive length and complexity of adversary trials.

* Delays in getting matters to court.

Inquisitorial System of Trial: Definition

The inquisitorial system [1] of trial is a method of trial used in

jurisdictions where the civil law (as opposed to the common law or British
system of law) is used including Germany, Italy, and France. The judge or
magistrate has central control over the conduct of cases, calling for
evidence and questioning witnesses. The emphasis is on the search for
truth in litigation. The rules of evidence are far broader than those used in
the adversary system.

Reforms to the Adversary System

* Provide for greater role/powers of the adjudicator (similar to Royal

Commissioner and Coroner).

* Decrease costs of litigation (see Section 5.2 Financial Restraints).

* Reduce delays in getting matters to trial (see Section 5.1.1 Delays in

legal processes and procedures).
* Simplification and/or broadening of the rules of evidence and
procedure.

Module 2: The Court Hierarchy

Reasons for the existence of the court hierarchy: specialization and

administrative efficiency

Specialization and administrative efficiency

* a hierarchy allows particular dispute-settling bodies to concentrate on

particular types of disputes

* the more serious cases are allocated to the more expert courts

* the judicial workload is divided so that personnel and procedures can

be adapted to the demands of particular cases.

Reasons for the existence of the court hierarchy: system of appeals

System of appeals

* the concept of higher and lower courts allows for a review of court
decisions to be made where an error or miscarriage of justice occurs

* the right of appeal is a fundamental right within the legal system

facilitated by a court hierarchy.

Reasons for the existence of the court hierarchy: doctrine of precedent

Doctrine of precedent

* the decisions of superior courts hold greater weight than those of

inferior courts

* the inferior courts are therefore bound by the decisions of higher

courts in the hierarchy
* precedent would cease to operate if no hierarchy existed and all courts
were considered of equal status.

Reasons for the existence of specialized courts and tribunals (SCATS):

specialization

Specialization

* SCATs allow for separate bodies to devote resources and expertise to

the settlement of disputes in recurring areas

* Specialization promotes greater efficiency in the dispute-resolution.

Reasons for the existence of specialized courts and

tribunals (SCATS): costs

Costs

* Traditional legal proceedings are costly

* SCATs provide recourse to justice at a much cheaper cost.

Residential Tenancies List hearings require no legal representation and

cost approximately $25 to initiate.

Reasons for the existence of specialized courts and tribunals (SCATS):

speed

Speed

SCATs can deal with legal disputes more quickly because:

* procedures are less formal

* they concentrate on particular types of disputes

Reasons for the existence of the court hierarchy

There are a number of key reasons for the existence of the court
hierarchy. A court hierarchy:

* allows for specialization and administrative efficiency

* enables a system of appeals to operate

* allows the doctrine of precedent to operate.

Reasons for the existence of specialised courts and tribunals (SCATs)

There are a number of reasons for specialised courts and tribunals. These
include that SCATs:

* allow for specialisation in dispute-resolution

* reduce legal costs

* reduce legal delays.

Module 3: The Jury System

Jury system: definition

Trial by jury is a method of trial whereby an independent body of peers

hears evidence in a legal dispute and gives a verdict on the basis of that
evidence.

Composition and Empaneling of a Jury

* Potential jurors are chosen at random from the electoral roll and sent
a questionnaire.

* The questionnaire determines eligibility:

ineligible: judges, magistrates, police officers;

disqualified: convicted of a serious offence, imprisoned for more than 5
years;

right to be excused: teachers, people over 65 years of age, pilots. (If the
suggested reforms
to the jury system take place, teachers will not be excused as of right).

* If eligible, jurors attend court for minimum of three days.

* Jurors are selected from the jury pool by being called at random from a
ballot box by the judge's associate.

* The potential juror named proceeds towards the jury box whereupon they
may be challenged prior to taking their seat.

* Challenges may be made to a potential juror: in criminal cases, an

accused has six peremptory challenges (where no reason for challenge is
stated), and unlimited 'for cause' challenges (where a reason is stated).

Role of a jury

Unanimous and majority verdicts in criminal cases

Empaneling a jury

* To attend court as required.

* To listen to, remember, collate and analyze the evidence presented in

court.

* To abide by a judge's directions on the law.

* To determine questions of fact.

* To hear indictable criminal offenses.

* To deliberate over a verdict but not give reasons for a verdict.

* To be satisfied 'beyond reasonable doubt' in a criminal case of its
verdict.

* To be satisfied 'on the balance of probabilities' in a civil case of

its verdict.

* To give a unanimous verdict in a criminal case involving murder

(12/12), whilst majority verdicts are accepted in non-murder criminal cases
(11/12). (This could change under suggested reforms.

* To return a unanimous verdict in a civil case if possible (6/6), whilst

majority verdicts (5/6) are acceptable if this is not possible.

* To assess damages in civil cases.

Strengths of jury system

* Represents trial by one's peers in serious matters.

* Verdicts are more likely to be accepted in the legal system and

society.

* Assists the presentation of evidence in court being simple and more

easily understood.

* Represents public values.

* History: jury has stood the test of time as a means of adjudication in

court cases.

* Provides protection for citizens' rights against misuse by governments

and their agencies.

Problems of jury system

* Inability to understand complex trials.

* Reasons for verdicts are not given.

* Adds to cost and length of court hearings.

* Media influence on jury deliberations can produce unjust outcomes.

* Exemption categories are too broad to represent cross-section of the

public.

Reforms to the jury system

* Require juries to give reasons for their decisions.

* Introduction of professional juries or forepersons for particularly

complex cases.

* Reduce categories of exemption to provide better-qualified jurors.

* Establish guidelines for the award of damages by civil juries.

* Change the number of challenges of jurors.

Alternatives to the jury system

* Trial by judge alone.

* Trial by a panel of judges.

* Trial by a mixed of judges and laypersons.

Module 4: Civil Procedure

Court processes and procedures: civil procedure

Civil procedure

This resource explores civil procedure. It covers the strengths and

weaknesses of civil procedure as well as all stages of the process:
pre-trial, trial and post-trial procedure.
Introduction

Purpose: Civil cases attempt to restore injured parties to their original

positions through compensation for harm suffered

Definition: A civil dispute involves a dispute between two parties, one of

whom alleges their rights have been infringed

Types: Civil disputes may take many forms including: torts, contract, family
law, constitutional law

Parties: Plaintiff vs defendant

Civil pre-trial procedure

Civil pre-trial procedure involves an exchange of documents between two

parties about an alleged infringement of rights that has occurred. Where an
out-of-court settlement (OCS) is not achieved, the parties prepare for
formal litigation before the civil courts.

* Infringement of rights occurs (e.g. road traffic accident)

* Injured party consults solicitor and seeks advice

* Injured party considers legal advice and reviews position

* Injured party attempts to negotiate OCS with defending party with

assistance of solicitor

* If no OCS is achieved after a letter of demand is sent from injured

party to defending party, the formal documentation exchange commences
between the two parties.

Pretrial Documents:
Writ of Summons:
* Formal legal document commanding the defending party to appear at
court
to answer allegations against them.

_Entry/Notice of Appearance_

* Acknowledges the Writ and indicates preparedness to defend the action.

Pleadings:
Statement of Claim

* Details the nature of injured party's claim against defending party.

Statement of Defense

* Defending party's response to the Statement of Claim.

Counterclaim

* Defending party may claim injury stemmed partly or largely from injured
party's own actions.

Reply and Defense to counterclaim

* Injured party has the right of reply to defending party's defense.

* Case is then listed by the court for hearing.

Discovery
Discovery-interrogatories
* Numbered questions about the facts that must be answered in writing
within 60 days.

Discovery-of documents
* Documents relevant to the dispute can be requested to be made available
to the other party.

* Interlocutory steps are taken between the issue of the Statement of

Claim and actual hearing.
Pre-trial Conference
Court officials (eg registrar in the County Court [1] and prothonotary in
the Supreme Court) arrange a sitting between parties in the dispute and
their legal representatives in the attempt to settle matter out of court
prior to proceeding further).

Certificate of Readiness for Trial

Plaintiff completes Certificate and the defendant receives notice of
trial.

Civil trial/hearing procedure

Most civil hearings are conducted without the use of a jury, heard before
a judge alone (tort and contract cases may be heard with a jury). The
standard of proof in a civil hearing is "on the balance of probabilities"
(i.e. one side's case is more probable than the other). The burden of proof
[1] rests with the plaintiff (i.e. the party bringing the matter to court).
If a civil jury is used, it will be comprised of six members.

* Jury of 6 empanelled.

* Plaintiff's counsel will outline a list of the facts and highlight any
important documents and points of law.

* Plaintiff [2] presents case by calling and questioning witnesses:

examination-in chief.

* Witnesses are cross-examined by defendant's counsel.

* Witnesses are re-examined by plaintiff's counsel.

* Counsel for the defendant may submit there is no case to answer.

* Judge will accept or reject this submission.

* If accepted, the judge will recommend to the jury it dismiss the case
in directing them on issues of law.
* If rejected, defendant's counsel is presented by calling and
questioning witnesses: examination-in-chief.

* Witnesses are cross-examined by plaintiff's counsel.

* Witnesses are re-examined by defendant's counsel.

* Counsel for the plaintiff will summarize their evidence for the court.

* Counsel for the defendant will summarize their evidence for the court.

* Judge will summarize the evidence and direct the jury (if present) on
the relevant law.

* Jury considers and returns its verdict and assesses damages (if no
jury, judge determines verdict and assesses damages).

* Successful party may request to the court that the losing party pay
costs.

* Court awards costs at its discretion.

Civil post-trial procedure

Civil post-trial or hearing procedure is determined by the original

decision made by a court in its civil jurisdiction. The considerations for
the court at this stage include the appropriate remedy in the matter and
applications for awards for costs. In addition, this stage may see an
appeal against the outcome launched by the losing party, and/or
enforcement orders for civil cases issued.

Civil remedies include:

Damages
* Nominal: minor damages where injury or harm is minimal.

* Compensatory:
Special: damages which can be calculated (eg doctor or medical costs);

General: damages which cannot be calculated but are based on pain and
suffering (eg loss of expected earnings).

Exemplary: high level of damages to 'punish' a defendant and/or deter

others;

Contemptuous: recognition of legal right of damages but not moral right.

Injunctions
A court order that compels a party to perform or cease the performance of
a particular act.

* Interim injunction: an injunction issued 'in the meantime' until

outstanding legal matters relevant to a full hearing of the case have been
determined by the court;

* Perpetual injunction: a permanent injunction.

Order of Specific Performance

Issued in cases involving breach of contract where a defendant is ordered
to comply with an original agreement between two parties.

Restitution
A court order where a party is made to restore another party to the
latter's original position prior to a dispute arising between the two
parties (eg return of goods or assets to an original owner).

Civil enforcement orders

Where a losing party to a civil case refuses to abide by the court's
decision, the winning party has recourse to various enforcement orders:

* Warrant of distress

Where a plaintiff seeks settlement of a civil matter by an application for

the seizure and sale of a defendant's property.
* Garnishee order

Where a plaintiff seeks settlement of a civil matter by an application for

monies owing to a defendant's creditor to be paid directly to the plaintiff
instead.

Strengths of civil procedure

Example of the elements of an effective legal system as the strengths of

civil procedure:

ELEMENTS OF AN EFFECTIVE LEGAL SYSTEM

FAIRNESS
* All injured persons are entitled to sue where harm or loss has been
suffered.

* Civil law is applied equally to parties.

* Plaintiff [1] carries the burden of proof. [2]

* The standard of proof [3] is 'on the balance of probabilities'.

* Injury or loss is compensated.

* Parties are made aware of the case against them at the pre-trial stage.

* Rules of natural justice apply.

ACCESS
* Variety of civil ADR assists the resolution of disputes through out of
court settlements.

* Range of remedies exists for the variety of aims in a civil action.

TIMELY
* Supreme Court has 'special status' list for civil matters, which
prioritizes matters due to urgency, length, and complexity.
* Use of 'directions hearings' assists in timely resolution of civil
disputes.

VALUES
* Civil law protects the right to live in freedom from harm and loss.

* Careless parties should redress injuries they have caused.

Problems of civil procedure

* Certain statutory time limits for the conduct of proceedings.

* Delays at the pre-trial stage.

* Lack of guidelines for jury damages in civil cases.

* Use of ADR may result in unjust outcomes.

* Limits on legal aid for civil matters.

* Interpreters not readily available for civil matters.

Module 5 - Criminal Procedure

The Nature of Proceedings

Three types of criminal offense

• Summary Offenses are less serious offenses and are tried by a

magistrate.
• Indictable Offenses are serious offenses and are tried by a judge and
jury.
• Indictable Offenses Triable Summarily are serious offenses and can be
tried by a magistrate and without a jury.

A crime is an offense against the law of state and enforced by courts

 TYPE TO ENTER A CAPTION.

Crown Vs. Accused

Investigations
Prosecutions
Convictions
Acquittals

Criminal law attempts to balance rights of citizens with law enforcement

Criminal pre-trial procedure

Criminal pre-trial procedure involves an investigation of allegations of

criminal activity by law enforcement agencies and the conduct of committal
proceedings [1] to determine whether serious cases will proceed to trial.

The following describes the general pre-trial processes for an indictable

offence:
* Offense committed.

* Police and law enforcement agencies investigate alleged crime.

* Suspects are questioned.

* Police lay a charge in the Magistrates' Court and a warrant for arrest
is issued (summons for less serious offenses).

* Police detain and arrest suspect.

* If an arrest warrant is issued, the accused person will either be

granted bail or held in remand.

* Committal proceedings in the Magistrates' Court [2] conducted to

determine if evidence is of sufficient weight to expect a conviction (if
so, accused will be sent for trial in higher court).

* Accused applies for bail: refused or granted.

* Director of Public Prosecutions [3] prepares case for trial by filing

presentment. [4]

* Judge conducts directions hearings to streamline preparation for the

trial (includes giving directions to hasten proceedings, reduce costs,
clarify questions of law and procedure, and set dates for the delivery of
court documents).

Criminal trial procedure

During criminal pre-trial procedure police investigations help determine

whether cases proceed to trial

Criminal trial procedure involves the prosecution of criminal offenses

before the courts, according to their degree of seriousness.

* arraignment: accused has the charges read to them

 TYPE TO ENTER A CAPTION.

* plea of guilty or not guilty

* if guilty, court hears submissions from both counsel (character

evidence, prior convictions, mitigating circumstances) prior to sentencing
the accused

* if not guilty, jury of 12-15 empaneled

* case for the Crown presented

* witnesses are examined-in-chief, [1] cross-examined, [2] and possibly

re-examined; [3] at conclusion of Crown case, defense may submit 'no
case
to answer'

* if defense submission of no case to answer succeeds, judge may direct

jury to acquit accused

* if defense submission fails, trial proceeds with defense evidence

* witnesses are examined-in-chief, cross-examined, and possibly

re-examined

* at conclusion of defense case, Crown Prosecutor presents final address

and summary

* defense counsel [4] presents final address and summary

* trial judge gives final address and summary to the jury, [5]
emphasizing standard of proof being 'beyond reasonable doubt'

* jury considers its verdict;

* verdict returned: guilty or not guilty

* if not guilty, accused is acquitted and freed

* if guilty, judge accepts submissions from counsel about character

evidence, prior convictions, mitigating circumstances

* judge sentences accused

* appeal may be launched.

Criminal post-trial procedure

Criminal post-trial procedure involves the imposition of a sentence or

penalty by a court in accordance with sentencing principles established by
a range of legislation.
Criminal sanctions include:

* indefinite sentences

* imprisonment

* hospital security orders

* combined custody and treatment orders

* youth training centre orders

* forfeiture of property

* intensive correction orders

* suspended sentences

* fines

* community based orders

* adjournment with or without conviction

* deferred sentences

Module 6 - Civil Cases and Criminal Disputes

Nature of disputes

Disputes are inevitable and the legal system must provide mechanisms [1]
by which disputes can be resolved in an orderly and just manner. The
resolution of disputes is one of the most important roles performed by the
law because if disputes are not resolved, social cohesion is threatened and
breakdown of law and order may occur. This puts all citizens' rights at
risk in a democratic legal system.
Why disputes occur:
- Ignorance of the law
- Interference with Legal Rights and Entitlements
- Disagreement about the law
- Intentional breaking of the law

Alternative methods of dispute resolution

Various methods of dispute resolution exist. These may be classified as

informal to fully formal and include:

* Self-help
Involves the resolution of a dispute by taking the initiative oneself
(simple letter of demand/written contact requesting resolution of
problem/discussion with disputing party about repair of damage to car in
motor vehicle collision).

* Abandon/concede
Involves deciding to abandon a claim because it may be too difficult or
inconvenient to pursue (e.g. other motorist involved in an accident failed
to stop or is reluctant to accept fault for the collision). Conceding a
claim is similar in that a party decides to resist fighting a claim any
longer as it might be too costly to do so, or they have an inferior case to
the claimant.

* Settlement by negotiation
Involves two disputing parties agreeing to an outcome by discussion and
consultation (e.g. driver of another car agrees to pay for repair of damage
to one's car after discussion about the reasonableness of the cost).

* Mediation
Involves the appearance of two disputing parties before an independent
mediator, who assists the disputing parties to arrive at a workable
solution or outcome. The mediator is a trained person who assists the
parties to define the dispute and promotes exploration of the options
available for a resolution. The mediators do not attempt to impose a
decision on the disputing parties or intervening in negotiations (eg Family
Court mediation service assists disputing parties regarding proceedings
pursuant to the Family Law Act 1975 (Commonwealth).

* Conciliation
Involves the appearance of two disputing parties (usually) before an
independent conciliator. The conciliator assists the disputing parties
attempts to resolve the dispute. Conciliators take a more active and
advisory role than mediators in dispute resolution, although their main
function is, similarly, to help reach a resolution. The conciliator may
assist to clarify questions of fact, the position of the law, strengths and
weaknesses in respective cases, and possible outcomes if the dispute
continues. The conciliator can suggest appropriate outcomes for the
parties.

* Arbitration
Involves the step beyond conciliation. Where conciliation does not
succeed, the conciliator can then move to arbitration and impose a decision
(ie an 'order') on the parties to resolve the dispute. (eg Industrial
Relations Commission: arbitrator/judge imposes an order on a striking
union
to return to work, as a trade-off that employment contract negotiations can
continue with an employer).

* Litigation
The final method of dispute resolution, often used where all others fail
or are inappropriate for the resolution of a dispute. Involves two (or
more) disputing parties appearing before an independent adjudicator in
order to resolve a dispute in accordance with rules of evidence and
procedure. Litigation is a formal process, routinely involving professional
legal representatives. The outcomes arrived at may include decisions of
guilt or innocence (criminal cases) or liability (civil cases).

Advantages and disadvantages of methods of dispute resolution

Self-help
FOR: Quick, convenient, party has control over dispute.
AGAINST: Could result in violence, without constraints or safeguards to
protect individual rights.
Abandon/ Concede
FOR: Convenient, party responsible for decision, reduces cost.
AGAINST: May result in rights not being protected or upheld, reluctance to
concede when a legitimate claim exists.

Settlement by negotiation
FOR: Parties own outcome, usually mutually agreed upon, reduces
potential costs and delays.
AGAINST: Parties bargaining or negotiating power may be unequal, does
not always result in mutually beneficial outcome.

Mediation
FOR: Cheaper, more accessible to parties, parties more likely to accept
outcome.
AGAINST: Decisions are not binding, cannot resolve issues of law.

Conciliation
FOR: Cheaper, more accessible to parties, can be made binding.
AGAINST: Ineffective where parties will not compromise or negotiate, legal
representation not always used can result in unfair negotiation process.

Arbitration
FOR: Decision is binding, but can be appealed, can be quick, concludes a
dispute.
AGAINST: Costs can be high, especially if legal representation is used,
decision is imposed on parties.

Litigation
FOR: Produces finality in dispute (although can be appealed), settles
questions of law, can set precedent.
AGAINST: Cost and delays associated with using traditional courts,
decision is imposed on parties.

Inappropriate mechanisms for dispute-resolution

Nature
The adversary system: dissatisfaction with traditional method of dispute
resolution exists because it can be inappropriate for effective justice.
Cause
Adversary system:

* Two opponents who disagree engage in correspondence. This leads to

frustration, and invariably litigation follows.

* Pre-trial steps assist to achieve an out-of-court settlement (OCS), but

the mere issue of a writ is not always a solution _(discovery: all
documents disclosed but can be complicated and costly)_.

* The role of parties and legal representatives is to advocate claims are

one-sided and non-objective.

* Goal is to 'win at-all-costs'.

Effect
Delays:

* Length of pre-trial stage (eg 3 years) means increased cost, lack of

motivation/interest as well as being inconvenient.

* Can be 1-2 years prior to setting date for trial, which can mean a
4-year delay overall for some.

* Backlog is too big; the process is too slow.

Costs
* Steps produce time-consuming process (increases legal representation
costs).

* Even if successful, plaintiff may not recover all costs (only 50-80% of
costs).

Complexity
* Discovery stage is too time-consuming.

* Difficult preparation and analysis.

Reforms
* Expand use of ADR techniques and forums (negotiation, arbitration and
mediation).

* Extend compulsory inclusion of ADR clauses into contracts.

* Expand centers for commercial dispute resolution (eg State Insurance

Office Centre - consumer disputes).

Types of disputes

Disputes occur across a range of different areas of social activity

Criminal
Civil
Constitutional
Family
Consumer
Industrial
Employment

All types of disputes may be resolved through processes and mechanisms

that range from informal to formal in their operation. Increasingly,
alternative mechanisms for dispute resolution (outside the traditional
courts) are being used. These are known as ADR (alternative dispute
resolution) techniques. [1]

There are two major types of disputes for the legal system.
The two major types of disputes for the legal system are Criminal and
Civil disputes.

Jurisdiction of specialised courts

Dispute resolution occurs in a variety of specialized courts.

In addition to the traditional court hierarchy, specialized courts are

available for dispute resolution. These specialized courts include:

* Family Court [1]

* Federal Court [2]

* Children's Court

* Coroner's Court