Describe one feature of the adversary system of trial Describe one feature of the adversary system of trial. In your response, outline one possible reform to this feature that could make it more effective (4 marks)

Possible reforms to the adversary system Former Chief Justice of Australia, the Honourable Murray Gleeson, AC, once said, ‘The law, like any other human creation, has defects, some of them serious. It is in constant need of improvement.’ The adversary system has stood the test of time and there is a level of confidence in the system; however, reform is needed.

Possible reforms include:

Relaxation of rules and evidence Strict rules of evidence could be relaxed to increase admissible evidence, such as prior convictions (in some cases) and further written evidence. Witnesses could also be able to tell their story in their own words, all of which may enable the truth to emerge.

Increase role of the judge Current powers of judge could be increased to become more involved in trial, like in Inquisitorial system. Judges could use their expertise rather than it going to waste by: collect evidence Question witnesses Help disadvantaged party However, a more involved judge may take away from a fair and unbiased trial.

Make legal representation more attainable. One of the biggest challenges with our legal system is the reliance on legal representation which is costly. Increasing government funding for legal aide programs and instigating online legal assistance would improve preparation and presentation of cases in court for financially challenged parties.

Increase the use of a range of dispute resolution within the court system In an attempt to lower the costs and reduce delays associated with taking a case to court, all courts are now committed to resolving civil disputes in the most efficient manner possible, which includes using a range of dispute resolution methods including mediation, conciliation and arbitration, in addition to judicial determination. For example, judge led mediation and Court Annexed Mediation in the Supreme Court.

THE ADVERSARY SYSTEM OF TRIAL FAILS THE MENTALLY ILL It took 21 tortuous months through the courts before a Supreme Court jury declared in 2009 that Samuel Benjamin was not guilty of murder by reason of mental impairment (DPP v. Samuel Benjamin VSC 2008). Mr Benjamin had murdered Doctor Khulod Maarouf-Hassan at her Noble Park general practice in 2006. At the time of the murder, Mr Benjamin was psychotic and was suffering a delusion that there was a conspiracy by the medical profession to kill him. Prior to her murder, Doctor Khulod had fought for Mr Benjamin to gain access to specialist mental health services, but was unsuccessful. At the commencement of the court process, six confusing committal hearings were held before the magistrate called for a psychiatric reassessment of Mr Benjamin, who represented himself in court. Mr Benjamin was diagnosed as psychotic and was transferred to a psychiatric hospital after having been denied bail and spending the previous seven months in prison without any medical treatment. When the case finally went to the Supreme Court, the trial was adjourned on three occasions pending further psychiatric assessments of the defendant. After being found not guilty on the grounds of mental impairment, Mr Benjamin remained in a psychiatric hospital.

Case: THE ADVERSARY SYSTEM OF TRIAL FAILS THE MENTALLY ILL It took 21 tortuous months through the courts before a Supreme Court jury declared in 2009 that Samuel Benjamin was not guilty of murder by reason of mental impairment (DPP v. Samuel Benjamin VSC 2008). Mr Benjamin had murdered Doctor Khulod Maarouf-Hassan at her Noble Park general practice in 2006. At the time of the murder, Mr Benjamin was psychotic and was suffering a delusion that there was a conspiracy by the medical profession to kill him. Prior to her murder, Doctor Khulod had fought for Mr Benjamin to gain access to specialist mental health services, but was unsuccessful. At the commencement of the court process, six confusing committal hearings were held before the magistrate called for a psychiatric reassessment of Mr Benjamin, who represented himself in court. Mr Benjamin was diagnosed as psychotic and was transferred to a psychiatric hospital after having been denied bail and spending the previous seven months in prison without any medical treatment. When the case finally went to the Supreme Court, the trial was adjourned on three occasions pending further psychiatric assessments of the defendant. After being found not guilty on the grounds of mental impairment, Mr Benjamin remained in a psychiatric hospital.

Feature How does the Adversary System allow for an effective legal system How does the Adversary System of trial hinder the effective operation of the legal system What possible reforms or recent changes assist in effective operation of the legal system Fair and unbiased hearing Rules of evidence and procedure apply to both parties insuring equality The existence of an independent and impartial adjudicator upholds fairness Both parties control and prepare their own case and choose a legal representative to assist them, creating consistency and fairness. Evidence that is excluded could mean useful/valuable evidence is not admissible The independence of the adjudicator means their expertise goes to waste and are not able to help a disadvantaged party, creating inequality and an unfair trial One party may not be able to afford legal representation, significantly limiting the ability for a fair and unbiased trial Possible reform to increase evidence allowed in trial for example prior convictions. Possible reform to increase the role of the judge to use their knowledge, such as in the inquisitorial system to collect evidence and question witnesses Recent change increase in court conducted ADR – Victorian Government Justice Statement provided 4 million dollars to County and Supreme Courts – 79 % settlement rate

Lengthy pre-trial procedures may add significant delays to a case Feature How does the Adversary System allow for an effective legal system How does the Adversary System of trial hinder the effective operation of the legal system What possible reforms or recent changes assist in effective operation of the legal system Effective access to the legal system All parties charged with criminal offence will have their case heard by a specialised court, in civil law there is ability to take case to court Process for appeals, with grounds is in existence Government Legal Aid exists to assist those parties who cannot afford legal representation Some parties may be unaware of their legal rights or may have language/cultural barriers Victorian Legal Aid is means tested and an accused person may be ineligible for legal aid but still unable to afford the costs, limiting access Appeals process adds to the time and cost of court proceedings Recent change Court annexed mediation in Magistrates’ Court (eg Werribee) saves costs for parties unable to gain legal aide. For claims under 10,000 this has an 86 % settlement rate Suggested change: increase government funding for legal aide. Timely resolution of dispute Trials within adversary system heard as continuous hearing until a decision is made Legal Representation allows parties to understand rules of evidence and procedure, which is more timely than a judge educating an unrepresented party Lengthy pre-trial procedures may add significant delays to a case Legal representation explaining rules of evidence and procedure, and the nature of cross examination and other rules of evidence are time consuming and add delays The Attorney General has suggested abolishing committal proceedings in a bid to reduce the delays of pre-trial criminal procedures. By relaxing the strict rules of evidence and procedure, the lengthy cross examination process may be reduced and this will save time and delay.

Evaluation of effective operation of legal system – adversary system of trial. HOW IT ALLOWS FOR FAT Fair and unbiased hearing Access to the legal system Timely resolution of disputes Rules of evidence and procedure apply to both parties insuring equality All parties charged with criminal offence will have their case heard by a specialised court, in civil law there is ability to take case to court Trials within adversary system heard as continuous hearing until a decision is made Any evidence that may unfairly influence judge/jury is inadmissible eg prior convictions Process for appeals is in existence Pre-trial procedures eg committal hearings and discovery speed up process The existence of an independent and impartial adjudicator upholds fairness Legal Aid exists to assist those parties who cannot afford legal representation Time limits are placed at many stages in an effort to get a case to trial in a timely manner

Problems that hinder FAT Fair and unbiased hearing Access to the legal system Timely resolution of dispute Evidence that is excluded could mean useful/valuable evidence is not admissible Some parties may be unaware of their legal rights or may have language/cultural barriers Lengthy pre-trial procedures may add significant delays to a case Independence of judge means expertise goes to waste as they are unable to help a disadvantaged party An accused person may be ineligible for legal aid There is lack of sufficient resources in Supreme, County and Magistrate’s Courts requiring extra funding Rules of evidence and procedure may be too complex to understand Appeals process adds to the time and cost of court proceedings

Actual changes Change to evidence laws Evidence Act 2008 relaxes evidence rules Changes to bail laws Bail Amendment Act 2013 allows more consistent approach bail and bail conditions

TEST your understanding 1.) Explain two major problems associated with the adversary system and suggest one reform that could be implemented to address each problem. 5.) Discuss two reforms that could be made to improve the strict rules of evidence or procedure as they operate in the adversary system of trial. 2.) Bobby has been charged with serious assault and cannot afford legal representation. Suggest why Bobby is at a distinct disadvantage. Explain what legal assistance may be available to him in Victoria. Explain one reform that could help minimise his disadvantage.

Describe one feature of the adversary system of trial and outline one reform that could assist this feature in its effectiveness (4 marks)