THE ADVERSARY SYSTEMLegal Studies 3C

NATURAL JUSTICE

People must be treated fairlyRight to be heard by an unbiased decision-makerKnow allegations made against youGiven a chance to respond to allegationsAvenue to appeal decisionFairnessTransparencyEquality before the law

CRIMINAL AND CIVIL CASESCriminal Civil

Person bringing the case

Person defending the action

Aim

Standard of proof

Verdict

Outcome

Examples of laws

SCENARIO:You have been charged with the murder of a friend. The police have evidence to prove you committed the murder.

You have pleaded not guilty. There will be a trial (judge and jury) to determine the outcome.

What principles and processes would you want in place within our justice system so justice is achieved?

WHAT IS THE ADVERSARY SYSTEM?The adversary system of trial is where two opposing parties, or adversaries, fight in court to win their legal battle. The trial is presided over by an independent and impartial umpire, and is conducted according to rules of evidence and procedure.

MAJOR FEATURES OF THE ADVERSARY SYSTEM

Role of the partiesRole of the judgeStandard and burden of proofNeed for rules of evidence and procedureNeed for legal representationSingle event (continuous trial process)

ROLE OF THE PARTIES / PARTY CONTROL

Instigate the proceedings Investigate the factsDecide which facts should be brought before the court Investigate the lawDecide whether to have a jury in a civil caseChoose whether to have legal representation

ROLE OF THE JUDGEAct as an impartial umpireEnsure rules of evidence and procedure are followedDecide questions of lawClarify issuesDirect the jury if there is oneDecide questions of fact when there is no juryDecide the sanction or remedy

** Tim Ellis Case

RULES OF PROCEDURESteps for bringing out the evidenceEach party will present an opening address to the courtThen present their witnesses who are subject to 3 stages of questioning

Each party will then present their closing summary to the court

Aim is to treat both sides equally and fairly

RULES OF EVIDENCEAdmissible evidence

Oral evidence given by a witnessSworn statement (affidavit)An object (murder weapon, stolen goods, photos)Audio or audio-visual materialSet of circumstances or facts (circumstantial evidence)

Inadmissible evidenceHearsay evidence Prior convictions Irrelevant evidence Privileged informationOpinion evidence Evidence obtained illegally

Evidence of bad character

LEGAL REPRESENTATIONExperts who are familiar with the strict rules of evidence and procedure

Help to ensure that the parties are able to present their best possible case

Clickview

ACTIVITIES Read page 382 – 407 (blue edition) Read page 360 - 383 (red edition)

Questions:

1. Briefly explain the 3 elements of an effective legal system including when these elements may not be achieved

2. In what way is party control an essential element of the adversary system?

3. Why is it essential to the adversary system that the judge be independent and impartial?

4. Why are the rules of evidence necessary for the adversary system to operate?

5. How do the rules of procedure operate to bring out the truth?

6. Why is equal legal representation an essential element of the adversary system?

7. Why might the truth not be found in the adversary system of trial?

PATRICK WARING CASE Legal representation (contacted other legal defence to assist, costly) Rules of evidence (evidence collected incorrectly, Party control (Patrick did not reveal vital information, contracted other investigators,

chose to leave Patrick in remand) Single event (length of time) Effective legal system Strengths and weaknesses of adversary system

Group discussion

https://www.youtube.com/watch?v=WKeTt0wFkD8&list=PL_P6w1Xp4KP8DoUenST0UV24a4bavTnkT

INQUISITORIAL SYSTEMSystem used in many European, Asian and South American countries.

Court is actively involved in determining the facts and conduct of a trial.

Its main role is to find out the truth of an issue.

INQUISITORIAL SYSTEMRole of the parties

Parties have a greatly reduced role as the judge has control of the case.

Role of the judge Investigate the case Define the issues to be resolved Gather evidence (together with the police) Call and question witnesses during the trial

INQUISITORIAL SYSTEMBurden and standard of proof

No formal burden or standard of proof is set as the judge is the person responsible for bringing evidence and finding out the truth.

Rules of evidence and procedure Less reliance on strict rules of evidence and procedure, for example inclusion of prior convictions, character evidence

Extensive use of written evidence (like statements)

Legal representation Assist the judge by further questioning of witnesses.

INQUISITORIAL SYSTEM Clickview – The Adversary system – chapter 5 Read page 409 – 415 textbook (blue edition)

Outline the major differences between the adversary and the inquisitorial systems of trial

Describe some of the inquisitorial features that exist within Australia’s legal system.

‘The inquisitorial system is more likely than the adversary system to reach the truth’. Discuss.

‘The adversarial system of trial is more likely to reach a verdict that is acceptable to the parties and the people than the inquisitorial system of trial’. Discuss.

THE ADVERSARY SYSTEMAccess WordPress site:

“The Adversary System tasks and additional readings” document

SELF-REPRESENTATION https://www.youtube.com/watch?v=YDxx3K8ZYgk

http://www.theage.com.au/victoria/legal-diy-as-county-court-release-selfhelp-youtube-video-20130911-2tkl1.html