F.A.T AND THE ADVERSARY SYSTEM Part of last dot point AOS2

FAIR AND UNBIASED HEARING Processes and procedures that help to ensure a fair hearing include: Problems with a FUH Party control – allows parties to be in control of their own case Independent arbitrators – ensures equal treatment of both parties, that the rules of evidence and procedure are followed, impartial third party deciding on questions of law and making a decision based on the facts before them. Rules of evidence and procedure – ensures evidence that might inappropriately influence the judge/magistrate/jury (such as hearsay, irrelevant and opinion evidence) are inadmissible and ensures both party have an equal opportunity to present their case Vital evidence might be missed because it is inadmissable Witnesses or accused could have language difficulties and therefore be disadvantages when giving oral testimony Legal representation is expensive and someone without representation, or with less adequate representation, could be disadvantaged Difficult for any person to not have personal bias in certain cases, this can potentially affect the judge (even though they are trained to now allow this) and the jury

CHANGES TO INCREASE FUH  Changes to evidence laws – changes were made to the Evidence Act 2008 (Vic.) with the intention to relax strict rules of evidence and procedure and allow relevant evidence to be heard in court  Changes to hearsay evidence – eg. An unintended implied assertion (claim) is not hearsay (child answering the phone saying “hello daddy”, it can be implied the father was on the phone)  Exceptions to hearsay rules are provides for Aboriginal and Torres Strait Islander traditional laws and customs  More flexible approach to the admissibility of evidence in civil proceedings  Consistency in criminal procedure – Criminal Procedure Act 2009 (Vic.) consolidated existing criminal procedure laws, making is consistent across different jurisdictions  Act also provided comprehensive review of appeals and simplified the grounds for appeal and related tests. Helps to ensure a fairer trial for accused persons regardless of the court in which their case is heard  Exceptions to the double jeopardy rule – legislation changed to allow for limited instances, where there is compelling new evidence, person found “not guilty” can be tried again

EAL AND THE ADVERSARY SYSTEM Processes and procedures that help EALProblems with EAL Parties can get assistance through legal aid Parties can use alternative methods of dispute resolution Can be ordered to participate in mediation, which assists an out of court settlement and helps reduce delay and cost Parties can take matters to tribunals Right to be innocent until proven guilty Need for legal representation can lead to parties not pursuing their civil claim due to costs – especially if unable to get funding from legal aid Person who represents themselves will be disadvantaged Effective access may be reduced because of language difficulties and difficulties understanding the legal processes

CHANGES TO IMPROVE FOR EAL  Simplifying criminal procedure – one main objective of the Criminal Procedure Act 2009 was to make criminal procedure laws clear, simple and as accessible as possible  Made changes such as abolishing redundant provisions, using plain English and clear and consistent terminology  It also consolidated a number of acts into one  National Partnership Agreement on Legal Assistance Services - provides Commonwealth funding to state and territory legal aid commissions for the delivery of legal assistance programs such as representation in criminal and family law matters, and assistance in dispute resolution. The Agreement aims to provide an integrated, efficient, cost-effective and accessible national system of legal assistance, particularly aimed at increasing the effective delivery of legal services to disadvantaged Australians and the wider community.

RECOMMENDATIONS TO IMPROVE EAL  Introducing a public defenders scheme - Victorian Law Reform Commission recommended this, similar to NSW and QLD  Public defenders are salaried barristers independent of the government, who are available to represent clients charged with serious criminal offences  available to those offenders who have been granted legal aid  public defenders are the defence equivalent of Crown prosecutors.  More multi-jurisdictional courts in regional and some urban localities which have a number of courts under one roof

TRD AND THE ADVERSARY SYSTEM Processes and procedures that help TRDProblems with TRD Trial is heard in a continuous event – no stops in procedure to allow for gathering more evidence or for further investigation (unlike inquisitorial system) System aims to: minimise delays during the trial, so that it can be heard in a timely manner, thereby enhancing effective operation of the legal system reduce delays in the pre-trial processes through the directions hearings cut out the committal hearings in a criminal case when it is a clear-cut case provide systems such as mediation in civil cases to speed up the process and assisti n achieving a resolution. Some parties in a civil case may not meet deadlines for pre-trial procedures. Pre-trial procedures in a civil case are long and time-consuming. The need for interpreters can delay a criminal case coming to court. Extra evidence can come to light after the case has been decided

CHANGES TO IMPROVE TRD  time limits on criminal procedure—The Criminal Procedure Act 2009 (Vic.) sets time limits for different stages of criminal procedure, For example, a committal mention hearing must be held within six months for most cases; for most offences a trial must commence within 12 months of a person being committed for trial.  simplifying criminal procedure—The Criminal Procedure Act also introduced changes designed to streamline criminal procedure and save time for the courts and the parties. For example, one court will hear all related charges for an incident together, whether the charges are summary or indictable offences. Also, joint committal proceedings for a child over 15 and an adult co-accused can be held if the charge is one of murder, manslaughter, arson causing death or culpable driving, and if the Children’s Court and the Magistrates’ Court agree.  time resolution of civil proceedings—The overarching purpose of the Civil Procedure Act 2010 (Vic.) and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. This act imposes obligations on the parties to act honestly and cooperate with each other, and allowing the court to make any direction or make any order it considers appropriate in the interests of the administration of justice or in the public interest.

RECOMMENDATIONS TO TRD  greater administrative support in courts— The Victorian government has proposed a major restructure of administration and public service staffing to reduce delays in the legal system, such as transferring employeesfrom other government departments to work in Victoria Legal Aid and the courts.

 Evaluate the extent to which the adversary system provides for a fair and unbiased hearing. In your answer, explain two recent changes to improve its ability to provide for a fair and unbiased hearing. (8 marks)