Chapter 7 – The adversary system Key Knowledge We will be starting here

7.1 – The adversary system – The role of the parties & Judge Who are the parties? – Criminal & Civil! Inquisitorial Vs Adversary Burdon and Standard of proof in criminal and civil matters. Who has the responsibility? What is the role of the Judge/Justice/Magistrate? Contested hearings – Plea of guilty! Law complied with? Miss-trial if not? Hearsay evidence, propensity evidence, evidence of bad character, relevance of evidence Is a party at a disadvantage if they have no representative? Why do we have them?

The role of the parties Mallard's case also highlighted a miscarriage of justice when police and a senior prosecutor were implicated in tampering with evidence and withholding information from the defense. Two parties control the preparation and presentation of their case – according to constraints of law. Prosecution/defendant Plaintiff/defendant The parties present their case to best represent their cause? – Can the prosecution exclude evidence that exculpates a defendant? Test the evidence presented – Cross examination, present own witnesses. http://www.innocent.org.uk/cases/stevenjohnston/ http://www.betterconsult.com.au/blog/prosecutor-faces- criminal-charges-for-withholding-evidence-is-there-a-need-for- a-prosecutorial-oversight-campaign-in-australia/

The role of the parties

The role of the judge Trial is conducted in a fair and unbiased manner http://www.theage.com.au/national/14-retrials-due-to-judge-errors-20091225-lf2n.html Rules of evidence, court procedures and rule of law followed Independent and impartial and cannot assist parties to present their case. Does not follow the inquisitorial processes in Australia Determine questions of law regarding how the law is to be applied A judge can direct a jury to acquit because the standard of proof has not been reached. Jury does not have to accept this. Explains relevant law to the jury Explains the points of law to the jury that needs to be proved in the case before them. Judge determines the sanctions

The role of the Jury Only required is a Criminal Trial when there is a plea of not guilty. Sit in the County and Supreme Courts Not used in the Magistrates court Decide guilt/innocence in a criminal trial Unanimous decision. Some cases Majority verdict can be accepted. Make a decision based on the facts presented before the court. Can be used in civil trials by request. Differing Burdon and standards of proof.

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