1. The Adversary System Part I Chapter 7

2. Learning Intention Explain the processes and procedures for the resolution of criminal cases and civil disputes Evaluate their operation and application Evaluate the effectiveness of the legal system. I can explain: The elements on an effective legal system: Major features of the adversary system of trial Success Criteria

3. An Effective Legal System In order for the legal system to be effective there are three essential elements that must be present. These elements are: – Entitlement to a fair and unbiased hearing – Effective access to the legal system – Timely resolution of disputes (both criminal and civil)

4. Adversary System of Trial The system of trial used in Australia, with two sides (adversaries), coming together before and independent and impartial court in an attempt to win the case

5. The Role of the Adversary System of Trial To provide a procedure for parties to present and resolve their case, in as fair a manner as possible. Operates in both civil and criminal cases. Does not involve an informal process of negotiation – battle to the end!

6. Adversary system of trial Courts use the adversary system Based on two parties battling to win their legal battle, which is presided over by an independent umpire and conducted according to rules of evidence and procedure Five major features 6 Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

7. The Role of the Parties Each party controls their own case and decides how the case will be run Responsible for: – Instigating proceedings – Investigating facts – Deciding which facts to bring before the court – Investigating the law – Deciding whether to have a jury in a civil case – Choosing whether to have legal representation Allows parties to be in control of and responsible for their own case without interference

8. The Role of the Judge Judge ensures the court processes and procedures are carried out according to strict rules of evidence and procedure and each of the parties is treated fairly Must act as an impartial umpire Has the following responsibilities: – ensures rules of evidence and procedure are followed – decides questions of law – clarifies issues – directs the jury if there is one – decides questions of fact where there is no jury – decides sanction or remedy Must act impartially and be independent and without preconceived ideas or biases

9. The Burden of Proof The expression ‘burden of proof’ means the obligation of proving a fact or facts. In civil cases the burden of proof rests with the party trying to make a claim. This is usually the plaintiff, however, a defendant will carry the burden of proof if they have a counter-claim or raise any defences they carry the burden of proof. In criminal proceedings the general burden of proving guilt falls to the prosecution. The burden of proof rests with the defendant in arguing a defence eg. Self defence of insanity

10. The Standard of Proof Civil cases – On the Balance of Probabilities Criminal cases – Beyond Reasonable Doubt – Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt… If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.

11. Need for Rules of Evidence and Procedure Rules of procedure – Provide framework in which cases can take place – Establishes the steps for bringing out the evidence – Each party will present an opening address, then witnesses and then closing summary – Each party has opportunity to cross-examine the other side’s witnesses which is followed up by re- examination. – Procedures are aimed at treating both sides equally

12. Need for Rules of Evidence and Procedure Rules of evidence – Facilitate the fact-finding task of the court to ensure fair and equal treatment – Evidence is concerned with proving facts. Can be given by oral evidence, in the form of a sworn statement, in the form of objects, audio or audiovisual material or circumstantial evidence (pg 369) – Ensures there is no inadmissible, unreliable or illegally obtained evidence or evidence is not unduly prejudicial – Inadmissible evidence includes some hearsay evidence, irrelevant evidence and opinion evidence – In a criminal case the court hears evidence only about the case, not about prior convictions (unless propensity evidence is allowed) – Keeps the contest fair – Truth should emerge

13. The Need for Legal Representation Role of preparing case usually undertaken by legal representatives on behalf of the parties Legal representation is necessary in adversary system – experts familiar with the rules Helps ensure best case presented Should be equal representation If one party is better represented than the other, it could lead to an unfair advantage and possibly an incorrect outcome

14. Learning Activity 7.1 Learning Activity 7.3 Learning Activity 7.4