1. MAJOR FEATURES OF THE ADVERSARY SYSTEM OF TRIAL, INCLUDING THE ROLE OF THE 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

2. 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.”

3. FIVE FEATURES OF THE ADVERSARY SYSTEM  Role of the parties  Role of the judge  Standard and burden of proof  The need for rules of evidence and procedure  The need for legal representation

4. ROLE OF THE PARTIES  Each party is in complete control over their case  known as “party control” Parties are responsible for various things:  Instigating proceedings – in civil cases the plaintiff brings the case to court, criminal cases the state brings the case to court  Investigating the facts – parties choose the methods they will use to investigate the facts and bring the facts before the court.  deciding which facts should be brought before the court – each side decides which evidence will best suit its case. Idea is that even if both parties don’t present all evidence, the truth should emerge through cross examination (prosecution must bring out all evidence known to it, even if it is not beneficial to their arguments)  investigating the law - each party is responsible for finding out the law that is relevant to their case  deciding whether to have a jury in a civil case  choosing whether to have legal representation

5. RELEVANCE TO THE ADVERSARY SYSTEM  allows the parties to feel that they are in control of the situation and responsible for the outcome  satisfies the competitive, or combative, spirit  means that, without the interference of the state, the parties to a civil dispute are able to take action to try to resolve their dispute  People accused of a crime are able to defend themselves if a prosecution is brought against them HOWEVER:  process is expensive  high cost of legal proceedings can contribute to the decision not to carry on with a civil claim or  lead to an unfair result in a criminal case if the accused is not represented

6.  Judge/magistrate must ensure that the court processes and procedures are carried out according to the strict rules of evidence and procedure  Must ensure each of the parties is treated fairly  Act as an impartial umpire and not favour either side Their responsibilities are:  ensuring the rules of evidence and procedure are followed – responsible for deciding admissibility of evidence and ensure correct procedure is followed so each party has an equal opportunity to present their case  deciding questions of law - determines the relevant law to be applied to the case  clarifying issues - may ask questions, recall a witness for a matter to be cleared up, or calla new witness with the permission of both sides – CANNOT favour either side though. Main objective would be to clear up an ambiguities  directing the jury if there is one - may address the jury on issues that are expected to arise or have arisen in the trial, the relevance of any admissions or directions made before the trial, or any other matter relevant to the jury in the performance of its functions and understanding of the trial process. ROLE OF THE JUDGE

7.  deciding questions of fact when there is no jury - such as which account of the evidence they believe to be accurate, as well as reaching a verdict.  deciding the sanction or remedy—In criminal cases if defendant is found guilty, judge decides sanction. In civil cases without a jury, the judge will decide the remedy if the plaintiff proves their case  Impartiality of judges/magistrates is really important to make it fair  Can only make decisions based on facts brought before the court  They have no previous knowledge (eg. None of prior convictions, unless it is propensity evidence ROLE OF THE JUDGE RELEVANCE TO THE ADVERSARY SYSTEM

8. Burden of proof = who is responsible for proving the case  Lies with the party bringing the case (plaintiff in civil, prosecution in criminal)  Follows the concept of control by the parties within the adversary system; someone who thinks they have been wronged brings the matter to court to prove the case or, in a criminal case, if society has been wronged the prosecution brings the case  Can re reversed if defence is pleading a particular defence or a defendant in civil is making a counter claim Standard of proof = strength of evidence needed to prove the case.  Criminal = beyond reasonable doubt (reasonable being what the average person would believe when the evidence is looked at in a logical and practical manner)  Civil = balance of probabilities BURDEN AND STANDARD OF PROOF

9. Rules of procedure  framework in which court cases can take place and through which the courtwill try to bring about a resolution to the case  Involves the steps for bringing out the evidence  Each party will:  Present opening arguments  Present their witnesses who are subject to three stages of questioning (examination in chief, cross examination, re-examination)  Present their closing summary  Procedure aim = treat both parties equally and fairly, creating an atmosphere of respect so that the parties will follow the decision of the court RULES OF EVIDENCE AND PROCEDURE

10. Rules of evidence  Facilitate the fact finding task of the courts and aims for equal treatment  Evidence is concered with proving the facts  Evidence can be:  Oral  Given in a sworn statement (affadavit)  Form of an object  Audio or audio-visual  a set of circumstances or facts indicating that a certain event has happened (circumstantial evidence) RULES OF EVIDENCE AND PROCEDURE

11. Rules of evidence are primarily for the protection of the parties, to ensure that:  the parties are treated fairly  the jury is not distracted by irrelevant material  unreliable or illegally obtained evidence is not heard by the court  evidence is not unduly prejudicial to the accused (for example, evidence of bad character should not be given)  in a criminal case the court hears evidence only about the case before the court, not prior convictions of the accused, which could influence the court, although prior convictions may be heard if propensity evidence is allowed. RULES OF EVIDENCE AND PROCEDURE

12.  Role of preparing and conducting a case is usually undertaken by legal representatives  Legal representatives are experts who are familiar with the strict rules of evidence and procedure that are essential elements of the adversary system  Help ensure the parties present their best possible case, and to assist in achieving a just outcome.  For adversary system to work effectively, there needs to be equal representation  extremely difficult for a person to present their own case in either a criminal or civil matter, without legal representation, and this can result in an unjust outcome  Bringing out the truth and showing your case in the best light depends on your being legally represented, with the best lawyer possible NEED FOR LEGAL REPRESENTATION RELEVANCE TO THE ADVERSARY SYSTEM

13. PRACTICE QUESTION 2012 Exam Question 7 (4 marks) ‘Every person in Victoria can be confident that, if he or she should face trial in Victoria, the trial will be conducted with impartiality, fairness and independence.’ Referring to the above statement, explain two features of the adversary system of trial.

14. ASSESSMENT REPORT  Weaker students made no link to the statement  DO NOT EVER MENTION THE JURY SYSTEM – IT IS NOT PART OF THE ADVERSARY SYSTEM!!! One feature of the adversary system is the role of the parties. The adversary system adopts a process whereby each party has complete control of their own case and decides which evidence to use when defending or prosecuting the case. This supports the idea of independence – it means that the court is not involved at all in how a case is conducted and is left up to the party to decide how to present the case. This also supports the idea of fairness because it means that every party is on a ‘level playing field’ in terms of choosing how to go about the case. Another feature of the adversary system is the role of the judge. The judge in an adversary trial is required to act impartially, as an unbiased independent umpire who does not get involved in the way the parties present their case. This supports the idea of independence (as the judge takes no sides), fairness (as it means that the parties are being ‘umpired’ and are bound by the same rules) and impartiality (as there is no biased umpire).

15. STRENGTHS AND WEAKNESSES OF THE ADVERSARY SYSTEM StrengthsWeaknesses The role of the partiesRole of the parties Delays High costs of proceedings The role of the judgeRole of the judge Burden and standard of proof Rules of evidence and procedure Oral evidence Inadmissible evidence Expert evidence (disadvantaging accused in criminal cases Need for legal representation

16. PRACTICE QUESTION  Question 9 2011 exam – 5 marks

17. ASSESSMENT REPORT  “it was not enough for students to simply explain two strengths and two weaknesses without demonstrating how a weakness reflects on or hinders that strength”