Area of Study 2 Court Processes & Procedures

& Engaging in Justice

PART A The Adversary System & Criminal Procedures

Chapters 7 & 8

Unit 4 Resolution and Justice

Outcome U402 Part A

•  You should be able to explain the processes and procedures for the resolution of criminal and civil disputes, and evaluate their operation and application, and evaluate the effectiveness of the legal system

Key Knowledge •  Elements of an effective legal system: entitlement to a fair and unbiased hearing,

effective access to the legal system and timely resolution of disputes

•  Major features of the adversary system of trial, including the role of parties, the role of the judge, the need for the rules of evidence and procedure, standard and burden of proof and the need for legal representation

•  Strengths and weaknesses of the adversary system of trial

•  Major features of the inquisitorial system of trial

•  Possible reforms to the adversary system of trial

•  Criminal pre-trial procedures and their procedures, including bail and remand and committal hearings

•  General purposes of criminal sanctions

•  An overview of three types of sanctions and their specific purposes

Key Terms

•  Adversary system

•  Burden of proof

•  Inquisitorial system

•  Propensity evidence

•  Standard of proof

•  Accused

•  Bail and remand

•  Beyond reasonable doubt

•  Committal hearing

•  Crime

•  Hearing

•  Indictable and summary offences

•  Recidivist

•  Sanction

•  Summons

•  Trial

Elements of an effective legal system

•  Entitlement to a fair an unbiased hearing

•  Effective access to the legal system

•  Timely resolution of disputes

The Adversary System of Trial

•  The adversary system is the system of trial used by most courts in Australia

•  It involves; two adversaries putting an argument to an independent umpire who will decide which side is in the right and which side is wrong

•  The adversary system is a contest, where parties fight to win

Major features of the adversary system

•  Role of the parties

•  Role of the judge

•  Rules of evidence and procedure

•  Burden and standard of proof

•  Need for legal representation

Role of the parties

Keywords •  active, control

Description •  parties have control over how they present their case •  they decide when to commerce proceedings, what evidence to bring, what law to argue, what witnesses to call, and what questions to ask those witnesses

Advantages •  parties are more likely to feel satisfied with the result if they have control over the case •  the people who know the situation best are the ones in charge of the proceedings

Disadvantages •  it is stressful and difficult for parties •  it gives an advantage to repeat offenders or wealthier parties

Role of the Judge

Keywords •  passive, independent, unbiased

Description •  the judge presides over the court, ensuring the rules of evidence and procedure are followed •  the judge listens to the arguments presented by the parties and makes an unbiased decision

Advantages •  the judge’s impartiality and lack of bias protect the integrity of the court •  the judge can keep an objective view by not interfering in the contest

Disadvantages •  the judge is unable to assist an unrepresented, inexperienced or otherwise disadvantaged parties •  the judge’s experience is wasted

The rules of evidence & procedure

Keywords •  strict, complex

Description •  rules of evidence govern what evidence is admissible and inadmissible •  rules of procedure govern how the trial is run

Advantages •  strict rules of evidence make sure it is all relevant, reliable and legally obtained •  strict rules of procedure ensure a smooth trial and put parties on equal standing

Disadvantages •  strict & complex rules make it difficult and stressful for parties to present their case •  some important evidence can be excluded on a technicality

The burden & standard of proof

Keywords •  person bringing the action, high level

Description •  the burden of proof is on the plaintiff or prosecution. They bring the action, and so have the responsibility to prove it •  the standard is the amount of proof required: on the balance of probabilities (civil), or beyond reasonable doubt (criminal)

Advantages •  they ensure unfounded claims do not succeed, and protect the presumption innocence

Disadvantages •  the party that has been wronged has total responsibility to prove the case •  this adds further stress and cost

The need for legal representation

Keywords •  high need, necessary for success

Description •  because of the other features of the adversary system, legal representation is vital in gaining a proper chance of success

Advantages •  a confident, experienced and trained professional can put the case as efficiently and persuasively as possible •  lawyers take the pressure off parties

Disadvantages •  good representation is too expensive for most people to afford •  the cost of barristers can give wealthier parties an unfair chance of success

The Inquisitorial System

•  The inquisitorial system is the system of trial used in many other countries such as France, and in some Australian courts such as the Family Court and Coroner’s Court

•  It is based on the idea that a trained professional investigates both sides of the mater and has access to all the information about it so the truth will be discovered

•  Rather than being a contest, the inquisitorial system is an investigation

Comparison to Adversary

•  Inquisitorial System: Role of the parties

Keywords •  inactive, passive

Description •  parties observe and can have input via statements and making requests of the judges, but they do not control proceedings or evidence

Better than adversary

•  the burden of proof is taken off parties, so it is less stressful and expensive for them

Worse than adversary

•  parties may feel at the mercy of the judges and therefore less satisfied with the decision

Comparison to Adversary

•  Inquisitorial System: Role of the judge Keywords •  active, in control, investigatory

Description •  the judge exercises almost complete control over the case •  they collect and examine evidence, choose which witnesses to hear from, and decide both the relevant law and the facts

Better than adversary •  the judge’s expertise is used •  parties are not able to hide or manipulate unfavourable evidence

Worse than adversary •  the judge may lose some of their impartiality, being so involved in the investigation •  the judge does not have to investigate angles the parties think are important

Comparison to Adversary

•  Inquisitorial System: Rules of evidence & procedure

Keywords •  flexible, loose

Description •  rules of evidence are almost non-existent: hearsay, prior convictions and written evidence are all allowed •  rules of procedure are not necessary, as the judge conducts proceedings

Better than adversary

•  parties do not have to navigate complex and stressful procedures •  all relevant evidence is taken into account

Worse than adversary

•  evidence such as prior convictions may be unfairly prejudicial to the defendant •  documentary and hearsay evidence cannot be tested thoroughly

Comparison to Adversary

•  Inquisitorial System: Burden & standard of proof

Keywords •  absent burden, high standard

Description •  there is no formal burden of proof, as the judge investigates all angles of the case simultaneously •  there must still be significant evidence to show that the defendant was at fault

Better than adversary

•  the injured party does not need to bear the burden of conducting the case •  unfounded criminal or civil claims should still not succeed

Worse than adversary •  because the defence’s cases is examined before fault has been proven, the notion that the defendant is innocent until proven guilty is not felt strongly

Comparison to Adversary

•  Inquisitorial System: Need for legal representation

Keywords •  supportive role, not necessary

Description •  legal representation support the parties, explain the proceedings to them and can make requests of the judge •  they may also assist the judge with the investigating the case

Better than adversary

•  a party’s success does not rest with their legal representation, so it decreases costs and doesn’t benefit wealthier parties as much

Worse than adversary

•  parties cannot choose the person they trust the most to argue for them give them the best chance of success

Possible Reforms to the Adversary System of Trial

•  Many recent reforms to the adversary system involve adopting aspects of the inquisitorial system

•  TASK: complete the above table with the other two reforms listed in the text

Reform Benefits

•  Greater investigative role of the judge allowing them to question witnesses and gather evidence

•  unrepresented parties could be assisted, and the judge’s expertise would be utilised •  it is more likely that all evidence would be uncovered

•  Greater use of written statements by relaxing the rules of evidence

•  flexible rules would be easier to navigate and less stressful for parties. A more complex picture of events would emerge

Effectiveness of the Adversary System of Trial

•  Arguments for and against on each element of an effective legal system: •  Fair & unbiased hearing

•  Effective access to the legal system

•  Timely resolution of disputes

See Handout Summary

•  Practice Questions: •  Discuss the effectiveness of the Adversary System of Trial (6 marks)

•  “A more inquisitorial system of trial is more beneficial than the adversary.” Discuss the extent to which you agree with this statement (8 marks)

Criminal Procedures

•  Introduction to Criminal Law •  Definition crime •  Types of offences •  Actus reus & Mens rea •  Age of criminal responsibility •  Parties in a case •  Burden & Standard of proof •  Criminal vs Civil Law

•  Make a mind map addressing each of the above points. Use pages 433 - 436

Criminal Pre-Trial Procedures

•  Commence once an accused has been charged and arrested but before trial

•  Main purposes: •  Assist police

•  Rights / Powers

•  Bail hearings

•  Clarify issues

•  Determine strength of evidence

•  Plea hearings

Police Powers Vs Individual Rights

•  Watch this clip ….

http://www.youtube.com/watch?v=ob-xNDGMO1c

•  Jot down the police powers / individual rights either shown and/or breached in the clip

Bail

•  Bail provides for the release of the accused from custody until the time of trial on the understanding he/she will appear at the trail.

•  This is consistent with the principle of innocent until proven guilty.

•  Upon reasonable grounds, in some circumstances bail will not be granted

Grounds for refusing bail •  There is an unacceptable risk that the accused may •  Fail to appear for trail/hearing •  Commit an offence whilst on bail •  Endanger the safety of the public •  Obstruct course of justice and/or interfere with a witness

•  Charge is murder or treason

•  Charge is trafficking, or cultivating a drug of dependence, or importing a traffickable or commercial quantity of drugs

•  Already in custody serving another offence and/or failed to meet bail previously

•  Accused requires protective custody

Conditions to bail

•  In some circumstances conditions may be attached to the granting of bail

•  Such conditions may to ensure the likelihood of the accused appearing in court and include:

•  Surety

•  Surrender passport

•  Check in with police

Remand

•  If bail is denied, the accused is remanded in custody

•  It is designed to protect the community

Restorative Justice

•  Focus on rebuilding broken relationships to overcome the affects of crime on victim and offender

•  Alternative avenue to trail

•  Encouraged for young offenders (<18) http://youtu.be/WrEApuJ-DTE

Committal Proceedings

Applicability of charge

Sufficient evidence

Plea hearing Ensure a fair trial

Prima Facie case

Handout Magistrate’s Court – committal proceedings

Committal hearings

Definition •  Committal hearings are held in the Magistrates’ Court for all indictable offences going to the County or the Supreme Court •  The magistrate will look at a summary of the prosecution’s evidence

Purpose •  To see if there is enough evidence to secure a conviction in a higher court. This is known as a Prima Facie case •  It prevents weak cases from going to trial

Details •  Most committals are conducted using written evidence such as witness statements and interview transcripts. These are submitted in a ‘hand up brief’

Evaluation of pre-trial procedures

Criminal Trials

•  Criminal trail is not examinable HOWEVER you need to have an understanding of how a trial is conducted in order to understand the workings of the adversary system and the jury system

Refer to the Going Further Box “Criminal Trials” pg 460-461 Justice & Outcomes Textbook

Criminal Sanctions: Purposes

•  Punish

•  Deter

•  Rehabilitate

•  Denunciate

•  Protect

Pretty Dancers Ride Donkeys & Ponies

Criminal Sanctions: types

•  Must know three for exam:

•  IMPRISONMENT

•  FINE

•  COMMUNITY CORRECTION ORDER (CCO)

Imprisonment

•  Imprisonment is the detaining of an offender in jail for a period of time determined on a level system

•  Last resort sanction

•  Aims: punish, protect, deter, denunciate & may rehabilitate

Fine

•  A fine is a monetary penalty paid by the offender to the court and expressed as penalty units in 2011-12 a penalty unit was equal to $122.14

•  Aims of fines: punish & deter and at times can denunciate

Community Corrections Order (CCO)

•  CCO is a supervised sentence served in the community which includes special conditions such as treatment and unpaid community work for a specified number of hours

•  Aims of CCO: punish, deter, protect & rehabilitate

Effectiveness of Criminal Procedure

•  When assessing the effective operation of criminal procedure we must consider if the three elements of an effective legal system is achieved

•  Within each element we need to consider •  Processes & procedures that

help •  Processes & procedures that

hinder

Element of effective legal system

Processes/procedures that help

Processes/procedures that hinder

Fair and unbiased hearing

Effective access to the legal system

Timely resolution of disputes

Pgs 494 – 502 will assist you

End of Part A

•  SAC – Thursday 14th August & Friday 15th August

•  Look ahead at Part B – begin with Chapter 9 Civil Procedures

References

•  Beazer, Humphreys & Filippin (2012) Justice & Outcomes 12e, Oxford University Press

•  Aldous (2008) Making & Breaking the Law, 8th edition, Macmillan Education Australia

•  Humphreys (2011) Legal Notes Units 3 & 4, 2nd edition, Nelson Cengage Learning

•  Jacaranda online, www.studyon.com.au