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72 Cards in this Set
- Front
- Back
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What is the adversary system?
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- made system of trial used in Australia where two parties battle to win the case. Rules of evidence and procedure must be followed and the judge and jury are impartial arbitrators.
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What is the role of the parties?
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- each party controls their own case - decide how evidence is presented (provided the rules of evidence and procedure is followed) - known as 'Party Control' |
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What are the responsibilities of individuals?
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- instigating proceedings - investigating the facts - deciding which evidence to present - investigating the law - deciding whether to have a jury in a civil case - choosing whether to have legal representation |
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What does party control ensure?
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Party control ensures: - parties are responsible for the outcome of the case - both sides fight to win their case - cases are heard without state interference However, party control increases the costs involved in taking a matter to court. But, it ensures the truth emerges. |
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What is the role of the judge?
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- the contest must keep the contest fair and impartial - decided on admissibility of evidence - decides on questions of law - ensures burden of proof is discharged - decide that case when there is no jury - sentence the accused in criminal cases |
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What are the responsibilities of the judge?
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- must be independent and impartial (adversary system would not function) - judge cannot favour one side - judge cannot have previous knowledge of the accused or parties in a civil (prior convictions) |
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What is the role of the burden and standard of proof?
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Burden lies with person bringing the case: - criminal: prosecution - civil: plaintiff Standard is the strength of proof required: - criminal: beyond reasonable doubt - civil: on the balance of probabilities |
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What is the responsibility of the burden and standard of proof?
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- essential elements of the adversary system - ensure the person bringing the matter to court has to prove their case to the required standard |
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What is the role of legal representation?
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- ensures parties are able to present their best case - familiar with rules of evidence and procedure - aware of people's legal rights - assist in achieving a just outcome |
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What is the responsibility of legal representation?
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- when each party present their case to the best of their ability, the truth should emerge - adversary system works effectively when both sides are equally represented - however, if one lawyer is better, they may be able to influence the case and bring about an unfair result |
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What is the role of rules of evidence and procedure? |
Aim to ensure: - fair and equal treatment (parties) - jury is not distracted by irrelevant material - unreliable or illegally obtained evidence is not heard - evidence is not unduly prejudicial - evidence should relate only to present case |
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What is the responsibility of rules of evidence and procedure?
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Rules of procedure: - ensure both sides treated equally and fairly - create an atmosphere of respect - parties are more likely to follow decision - truth should emerge through questioning Rules of evidence: - keep contest fair Help ensure a just outcome is achieved. |
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What is the advantages of the role of the judge?
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- The judge is impartial: makes sure the parties are treated fairly which creates more confidence because independent (criminal = independent of prosecution, civil = independent of parties) - decides questions of law and procedure - asks questions only to clarify points raised in examination or cross-examination by the parties |
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What are the disadvantages of the role of the judge?
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- the judge cannot offer the parties assistant - judge's experience and knowledge of the law is underutilised - may lead to unfair result if party is poorly represented |
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What are the advantages of legal representation?
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- each party has the right to choose their legal representation - they can choose someone who they feel will present their case in the best light |
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What are the disadvantages of legal representation?
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- costly: one party may not be able to afford legal representation - both sides need to be equally represented for adversary system to be effective - if one side has inferior legal representation, this may lead to an unfair hearing |
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What are the advantages of the role of the parties?
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- the parties are able to: control their own case, engage legal representation to present their case in the best possible light, decide what fact are brought before the court
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What are the disadvantages of the role of the parties?
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- Party control can lead to: further animosity, high cost of legal representation, delays which cause hardship.
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What are the advantages of the burden and standard of proof?
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- party bringing the case has to prove the facts to the standard of proof required: beyond reasonable doubt, on the balance of probabilities. |
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What are the disadvantages of the burden and standard of proof?
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- adversary system is more concerned with winning rather than finding out the truth - each side bring out the facts to benefit their side |
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What are the advantage of evidence and procedure?
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- ensures fair and unbiased hearing: oral evidence helps reveal if witness is sincere, examination and cross-examination allows both parties to present their case and test the evidence of the other party, all parties are treated equally and some types of evidence is not permitted.
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What are the disadvantages of evidence and procedure?
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- witnesses may be intimidated and say something misleading - witnesses can only respond to questions - oral evidence relies on the memory of witnesses - expert evidence may carry too much weight - vital evidence may be inadmissible - the truth may not come out |
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Explain the inquisitorial system.
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Court is actively involved in: - conducting trial - determining facts - finding the truth Based on the idea that: - the effective operation of the legal system is of benefit to society as a whole. - it is the responsibility of the state to ensure all relevant information is examined and the truth is reached. |
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What is the role of the judge in the adversary trial?
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- case conducted before an independent and impartial adjudicator. - judge decides questions of law and procedure - judge asks questions only to clarify points raised in examination or cross-examination by the parties. |
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What is the role of judge in the inquisitorial trial?
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- judge takes an active role in the examination of a case - judge determines which evidence or witnesses need to be examined, the issues to be contested and procedures - judge conducts questioning of witnesses. |
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What is the role of the parties in the adversary trial?
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- parties are responsible for the preparation and presentation of their case. - parties determine the issues to be contested and the witnesses to be called. |
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What is the role of the parties in the inquisitorial trial?
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- role varies - parties respond to the directions of the court in presenting arguments to the court
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What is the role of legal representation in the adversary system?
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- to represent the interests of their client - to prepare and present the client's case to the court |
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What is the role of legal representation in the inquisitorial system?
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- to assist the judge in determining issues for investigation - in some instances, to ask questions after examination by a judge |
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What is the role of rules of evidence in the adversary trial?
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- strict rules of evidence, with a strong reliance on oral evidence - parties collect the best evidence to support their case - in most cases, previous character cannot be introduced as evidence except as a consideration in sentencing |
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What is the role of the rules of evidence in the inquisitorial trial?
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- greater dependence on documentary evidence collected by the examining judge - witnesses have more freedom to describe events rather than merely respond to questions - evidence of prior convictions may be heard in a case. |
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What is the role of a continuous trial in the adversary trial?
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- conducted as a single, continuous hearing
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What is the role of a continuous trial in the inquisitorial trial?
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- may allow adjournment for further investigation by the court
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Possible reforms: Greater investigative role for the judge.
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ADVANTAGE: - could allow a judge to ask questions and call witnesses - ensure that cases are decided correctly DISADVANTAGES: - judge could be seen to be biased towards on side - judges loses the advantage of being independent |
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Possible reforms: Greater use of written statements (advantages)
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ADVANTAGES: - medical evidence could be submitted in written documents |
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Possible reforms: Greater use of written statements (disadvantages)
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DISADVANTAGES: - does not allow cross-examination to test the strength of the evidence - could lead to increased costs as solicitors need to draw them up - if evidence is disputed, witnesses may need to be called anyways, increasing costs and delays |
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Possible reforms: more informal conduct of the trial (advantages)
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- strict rules of evidence and procedure can be intimidating for the parties and confusing for the jury - greater use of tribunals could enable more parties to resolve civil cases quickly and cheaply in a more informal atmosphere - parties are encouraged to settle the dispute themselves |
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Possible reforms: more informal conduct of the trial (disadvantages)
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- informal conduct may lead to an unfair result - rules of evidence and procedure are there to protect the parties and help achieve a fair outcome |
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Possible reforms: greater availability of legal aid (advantages)
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- parties are likely to be disadvantage without legal representation - parties with limited financial means are entitled to legal aid - increasing the availability of legal aid would allow more people to be represented adequately |
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Possible reforms: greater availability of legal aid (disadvantages)
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- legal aid is limited - cases unlikely to succeed are rejected - there is little or no funding for civil cases - increasing legal aid would increased the burden on the tax payer |
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What are the pre-trial procedures?
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- bail and remand - committal hearings - individual rights - police powers |
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What is the purpose of criminal pre-trial procedures?
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- assist the police - protect the rights of the accused - provide rights to the police - provide and opportunity for the accused to be released pending trial - determine whether a trial should proceed - allow accused to plead guilty or not guilty |
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What is the purpose of bail and remand?
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- Bail: to allow and accused person to go free until the hearing or trial (presumption of innocence) - Remand: to protect the community against the actions of an accused person the court believes may: reoffend, inflict harm, commit further crimes or fail to appear before the court for justice to be served. |
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What is the procedure of bail and remand?
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- after being charged, defendant can be: released on bail or held in remand until case comes to trial. - bail is usually granted unless: flight risk (may not appear in court), danger to society or already in custody for another offence. - bail may involve a deposit of money |
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What is the purpose of committal hearings?
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- determine whether a prima facie (first look) case exists - establish whether there is sufficient evidence to support a conviction by a jury at trial - aim is to avoid the time and expense of an unnecessary trial |
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What is the procedure of committal hearings?
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- judge examines the 'hand-up-brief' of evidence (written evidence, witness statements, et cetera) - can hear oral testimony if necessary (generally don't to speed up process - decides whether there is enough evidence to go to trial - if prima facie is establish: defendant is committed to trial, released on bail or held in remand, evidence collected forms of depositions, presentment is drawn up containing details of the charges against the accused |
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What is the right to silence (individual rights)?
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- ensures accused does not have to answer police questioning or testify if committed to stand trial - designed to protect the accused from saying anything that may be incrimination - police must ensure suspect understands this right, otherwise anything said may be admissible |
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What is the right to contact a lawyer (individual rights)?
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- a person had the right to communicate with a lawyer and a relative or a friend unless: it will result in the escape of an accomplice, or the destruction of evidence. - The suspect should be given the opportunity to: speak with the lawyer in private and have the lawyer present during questioning |
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What are police powers (arrest)?
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- arrest without warrant: must reasonably believe suspect committed crime. Arrest is necessary to: preserve public safety, prevent continuation of the offence, ensure the suspect appears in court. - arrest with a warrant: police may obtain warrant to search if they believe the search will disclose: stolen goods, evidence of a crime, goods that might be used in a crime, goods relevant to commission of a crime. |
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What is the purpose of sanctions?
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- fair punishment - protect the community - rehabilitate - deterrence - denunciate |
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How is a sanction appropriate?
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- appropriate to severity of crime - appropriate for the offender - acceptable to the community - able to fulfil the aims of sentencing |
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What is imprisonment?
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- convicted person can be sentenced to be detained in prison for a period of time - it is seen as the sanction of last resort as results in loss of liberty |
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EVALUATION OF IMPRISONMENT: - removes offender from society as both: punishment & protection for society. - Rehabilitation: various education programs in prison aim to rehabilitate the offender. However, influence of other prisoners may lead to further crimes |
- Deterrence: general deterrence: most people are deterred from committing a crime by possibility of going to prison. Specific deterrence: offender will not want to go to prison again, however, undermined by influence of other prisoners - Denunciation: long prison sentence can show disapproval |
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What is a fine?
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- a monetary penalty - prescribed fine for an offence is set out in the act that establishes the offence - if fine is not paid, offender can go to prison |
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Evaluation of fine. |
- serves to punish the offender - may act as specific and general deterrent - unlikely to rehabilitate or protect society - large fines may denounce a particular crime |
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What is intensive correction orders (ICOs)?
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- second most severe punishment - essentially an imprisonment sentence served in the community - maximum of 12 months - served as an intensive correction program - offender must: not reoffend, not leave Victoria without permission, report to a CCO twice a week, perform unpaid community work and/or participate in treatment for 12 hours each week |
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Evaluation of intensive correction orders.
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- punishment: restricts offender's freedom - acts as specific and general deterrent - aims to prevent the offender from reoffending (protection) - special counselling and treatment aim to rehabilitate and avoids imprisonment where the offender may be influenced by other prisoners |
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What features of the adversary system contribute to a Fair and Unbiased hearing?
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- Party control (have control over case & evidence presented) - Independent arbitrators (judge/jury unbiased) - Rules of evidence and procedure (equal chance to present case/legally obtained evidence not permitted) - Right to silence - Legal aid - Burden of proof |
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What features of the adversary system limit a Fair and Unbiased hearing?
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- Vital evidence may be inadmissible (hearsay/opinion/legally obtained - truth does not emerge) - Legal representation is costly (one may be inferior - oral evidence can be misleading (witnesses intimidated/relies on memory) - Judge and jurors can have personal biases |
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What features of the adversary system contribute to Effective access?
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- disputing parties can have their case heard by an impartial and unbiased court - courts can hear all types of cases |
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What features of the adversary system limit Effective access?
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- high court fees and the cost of legal representation may reduce access - formality of proceedings may be intimidating |
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What features of the adversary system contribute to a Timely resolution?
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- trials are heard as a single, continuous event - once it starts, does not stop to allow more evidence to be collected - this helps minimise delays |
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What features of the adversary system limit a Timely resolution?
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- pre-trial procedures and strict rules of evidence and procedure may delay resolution - more evidence may emerge after trial |
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What features of the criminal pre-trial procedures help a timely resolution?
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Committal hearings - ensure cases with insufficient evidence don't go to trial; saves time of an unnecessary trial & reduces the burden on the courts - allow accused to enter an early guilty plea; saves time of the trial & reduces burden on the courts |
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Hand-up brief: - at committal saves time as all the evidence is written; determine whether prima facie case exists; much faster than oral evidence |
Directions hearings: - allows the judge to give directions as to how the case should proceed; saves time - judge is able to rule on points of law; saves time |
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What features of the criminal pre-trial procedures limit a timely resolution?
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- Committal hearings are often a waste of time as very few cases are stopped at this stage; may be faster to just go straight to trial - Individual rights may make it more difficult for police to collect evidence; leads to delays |
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What features of the criminal pre-trial procedures help a Fair and Unbiased hearing?
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- Committal hearings allow the accused to hear the evidence against them; therefore able to best prepare their case; on equal footing with the prosecution - should result in fair hearing - Bail allows the accused to go free until their trial; able to meet with lawyers to best prepare their case - ensures fair hearing |
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- Presumption of innocence means that the accused doesn't have to prove their innocence (ensures fair and unbiased as they don't have to prove they are guilty) - Police power to question suspect for a reasonable amount of time gives the police the opportunity to question the accused and collect evidence for the trial |
- Right to silence ensures the accused doesn't have to answer police questions or testify at trial - designed to protect them from saying anything incriminating - designed to ensure a fair hearing |
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What features of the criminal pre-trial procedures limit a Fair and Unbiased hearing?
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- Legal representation is needed for pre-trial procedures; increases costs; may lead to unfair result if the accused is poorly represented |
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- Individual rights - such as presumption of innocence and the right to silence may mean that vital evidence doesn't emerge; may lead to an unfair result as the truth may not come out
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- Remand: if held in remand, the accused may not be able to prepare case to the best of their ability; lead to unfair result as both parties need to be equal in adversary system |
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What features of the criminal pre-trial procedures help Effective access?
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- Committal hearings ensure cases with insufficient evidence do not go to trial; this reduces costs involved in an unnecessary trial; reduces the burden on the courts for other cases to be heard - Committal hearings allow the accused the opportunity of an early guilty plea; avoid costs and increases access for other cases |
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What features of the criminal pre-trial procedures limit Effective access?
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- legal representation is needed for the pre-trial procedures due to their complexity; increases costs; reduces effective access for those with limited financial means - Committal hearings - majority of cases go straight through this stage; would be faster and cheaper to go straight to trial - Remand; may not have equal access to the courts as unable to meet with effectively with legal representation |
