1. The Adversary System

2. Key knowledge:

3. INNOCENT MAN SPENDS 11 YEARS IN PRISON
In November 2005, five justices of the High Court of Australia unanimously set aside the wrongful murder conviction of Andrew Mallard and ordered a retrial on the grounds that the prosecution withheld vital evidence from the defence (and subsequently the jury) in the original trial, which denied Mr Mallard a fair trial (Mallard v. R [2005] HCA 68). In February 2006, after four appeals and having spent more than 11 years incarcerated, Mr Mallard was finally released from prison.
In November 1995 a Supreme Court jury originally found Mr Mallard guilty of the murder of Pamela Lawrence, a jewellery shop owner who was brutally killed in May On the day of the murder, Mr Mallard, who suffered from a mental illness (bipolar disorder) at the time, had been briefly taken into police custody for a minor theft and so, although there was no forensic evidence that suggested he had murdered Mrs Lawrence, was considered one of many suspects.

4. Subsequent to the murder, Mr Mallard was interviewed several times by police (including while in hospital seeking medical treatment for mental health issues) and, in an attempt to assist the police with their investigations, speculated about how Mrs Lawrence may have been murdered and in doing so, police alleged, confessed to the crime. He was subsequently convicted and sentenced to life imprisonment.
In 2005, Mr Mallard's legal representatives were finally successful in proving to the High Court that the prosecution failed to disclose vital evidence to the defence (in breach of their general duty to do so) that could have been used to cast doubt on the prosecution's case, including evidence that Mrs Lawrence could not have been killed in the manner described by Mr Mallard when he was speculating about how she may have been killed.

5. Mr Mallard was offered $3
Mr Mallard was offered $3.25 million by the West Australian Government as compensation for his wrongful murder conviction.

6. Key Concept
In Australia, most courts use the adversary system of trial to resolve disputes, whereby two opposing parties prepare and present their case in accordance with strict rules of evidence and procedure, before an independent and impartial adjudicator who ensures the strict rules are followed and the trial is fair.

7. Major features of the adversary system of trial
The adversary system of trial evolved in England and was inherited by Australia, from the British, upon colonisation. Other countries that use the adversary system include most of the United Kingdom, Canada, India, Hong Kong, Pakistan, South Africa, New Zealand and the United States of America.
The adversary system of trial is used in most courts throughout Australia to resolve both criminal and civil cases. Under the adversary system of trial:
two opposing parties (adversaries) are responsible for preparing and presenting their case, in accordance with strict rules of evidence and procedure, before an independent and impartial adjudicator (judge or magistrate)
the independent judge (or magistrate) ensures each party adheres to the strict rules of evidence and procedure so both have an equal opportunity to present their case to the court and the trial is fair
it is hoped that, by acting in self-interest and striving to win their case, each party will present the best possible evidence so the truth may emerge and justice prevail.

8. The following diagram outlines the major features of the adversary system of trial. Each of these features is present in every criminal and civil trial conducted throughout Australia. You will notice that the jury is not a feature of the adversary system of trial

9. Description of features of Adversary System

10. Feature Description Role of the parties
Parties have full control of case, including
Whether to bring proceedings – in a civil case the wronged party decides to seek a remedy, in a criminal case the accused can plead guilty or not guilty
Preparation for trial – including gathering gathering of evidence, investigating the relevant law
Evidence led in the trial – parties will bring forward evidence to support their case (although in criminal prosecution must bring forward all evidence whether it furthers their case or not).
Decide to engage in legal representation and who this will be
Role of the judge
Judge or magistrate acts as independent/impartial umpire ensuring parties follow rules of evidence and procedure. They rule on matters of law, decide the admissibility of evidence, empanel and select the jury, direct the jury, decide the sanction in criminal cases and the civil outcome if no jury is present
Burden and standard of proof
Burden of proof is on the party bringing the case forward. In criminal it is the prosecution and in civil it is the plaintiff. The prosecution must prove guilt beyond reasonable doubt, and the plaintiff must prove wrong doing on the balance or probabilities
Rules of evidence and procedure
Rules of evidence are concerned with proof of facts and there for the protection of both parties. Admissible evidence includes oral evidence, affidavits, object and circumstantial evidence. Inadmissible evidence includes hearsay, opinion (unless expert opinion), irrelevant, illegally obtained, prior convictions and evidence of bad character. Rules of procedure provide the steps and order for bringing out the evidence

11. Feature
Decription
Need for legal representation
Due to strict pre-trial, trial and post-trial procedures and rules of evidence, there is a need for parties to be represented by someone who knows the rules
Legal representation is necessary in order for parties to present the best case for them, to question witnesses under oath in court, and to achieve a just outcome.
Legal Aide is available for those who suffer financial hardship
A judge of the County or Supreme court can order Victorian Legal Aid to represent an accused person in a criminal trial if they feel that the accused person would not get a fair trial without legal representation and they cannot afford their own representative

12. Evidence generally not admissible is:
Hearsay evidence refers to evidence that is given by a witness who did not experience an actual event firsthand, but is relying on another person's account of the event.
Illegally obtained evidence refers to evidence that has not been legally acquired, and is generally regarded as inadmissible under the strict rules of evidence.
Irrelevant evidence refers to extraneous evidence that is not directly related to the facts of the case and is not admissible in court.
Previous convictions refer to the prior criminal record of the accused and are generally not admissible as evidence in a trial conducted under the adversary system because they may prejudice the jury (when present).
Opinion evidence is evidence based on what a witness thinks, believes or infers to be the facts, rather than the witness's actual knowledge of the facts of the case.

13. Strengths and weaknesses of the Adversary system of trial
Role of judge
The existence of an impartial, independent and unbiased adjudicator ensures fairness for both parties. This is achieved through decisions being made only on evidence brought before the court and through adjudicators having no prior knowledge of either party. They are also independent from political pressure and the state hence politics plays no part in their decision
Their role is very limited for the most legally experienced person in the court. Their skills, legal expertise and experience are not being fully utilised. Their independence also means they are unable to help a disadvantaged party, perhaps one who is self represented due to cost.
Need for legal representation
The need for legal representation promotes equality and consistency before the law. Their legal knowledge allows rules of evidence and procedure to be followed and allows parties to present the best case possible and achieve a just outcome. Victorian Legal Aid is available if a party cannot afford a representative.
Due to high cost, legal representation may not be affordable and this may deter the pursuit of a case or mean an unjust decision is created if a party represents themselves. Victorian Legal Aid is also limited and means tested and so may not be available to all disadvantaged parties.

14. Strengths
Weaknesses
Rules of evidence and procedure
Rules of evidence and procedure promote fairness and consistency, as both parties must abide by the same rule. They ensure that only releant, reliable evidence is led and no evidence that will prejudice the accused is admitted. Both parties are able to test each other’s evidence through cross examination so the truth should emerge.
Oral evidence may be incomplete due to intimidation and forgetting of facts or communication difficulties (example language barriers). Witnesses are not able to tell their own story, as in the inquisitorial system, and this can lead to omission of evidence. It may also be omitted due to admissibility, for example prior convictions. This may mean the truth does not emerge
Burden and Standard of proof
Having party bringing forward case being responsible for proving the case is fairer than than either the defendant or a third party find the facts. The presumption of innocence in criminal trials treats each individual equally until the case is proven
Emphasis is on winning the case rather than on finding the truth. The defendant in a criminal case does not have to bring forward evidence that incriminates them and thus the truth may not come out.
Role of the parties
Parties are satisfied as they have full control over their case. The accused in a criminal case prepares their own case as opposed to the state who is prosecuting them, providing a fair trial. Evidence relevant to the trial should be brought forward during the trial by both parties, ascertaining the truth
Due to the adversarial nature, there is a winner and loser, creating animosity between parties. Not all evidence may come out also as parties may only bring forward evidence favorable to them (except prosecution who must bring forward everything), inhibiting the truth.
Delays could also be caused due to time taken to collect evidence. Costs of the case are also generally borne by the parties.

15. Explain one feature of the Adversary system of trial (2 marks)

16. One feature of the adversary system of trial is the role of the judge
One feature of the adversary system of trial is the role of the judge. This can be best described in the latin term “nemo debet esse judex in propria causa” meaning that no man should be judge in his own cause. Therefore, the adjudicator should be totally impartial and unbiased allowing for both parties to present their case (audi alteram partem). They must also ensure parties follow the strict rules of evidence and procedure at trial.

17. 7.1 and 7.2
7.1
3.) Explain the role of the parties in the adversary system of trial.
4.) Explain how the judge's role might differ in a civil trial depending on the presence of a jury
6.) Evaluate two strengths associated with the role of the parties and the role of the judge in the adversary system of trial.
7.2
2.) Explain whether or not the following evidence would most likely be admissible in court.
A.) Jobe said that Charlotte had told him that her father had killed her mother.
B.) The prosecution stated that ‘this is not the first time the accused has been found to be violent, having served time in jail for rape’.
C.) Alana, a friend of Joel, said that she thought he was very nervous on the night of the murder.
D.) In an armed robbery case, Lewis was asked if his brother Axle, the accused, had played with toy guns as a child.
4.) Evaluate two strengths associated with the existence of strict rules of evidence and procedure as they exist under the adversary system of trial.