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Terms in this set (30)
The system of trial used in Australia which involves two opposing parties (adversaries) fighting in court to win their legal battle. An impartial and independent judge presides over the trial, which is conducted according to strict rules of evidence and procedure. The role is to provide a procedure for parties to present and resolve their case in as fair as manner as possible.
Key Features of the Adversary System
The role of the PARTIES, the role of the JUDGE, standard and burden of PROOF, the need for rules of EVIDENCE and PROCEDURE and the need for LEGAL REPRESENTATION
In this type of trial the state is the prosecution and is trying to prove the guilt of the accused (defendant), while the accused is fighting to be found not guilty.
The party that brings the case is the plaintiff and is trying to prove that the other party was in the wrong, while the defendant is trying to show that they were not.
The role of the parties
Each party has control of their own case as long as the rules of evidence and procedure are followed. This is known as party control.
Key features of party control
Investigating the PROCEEDINGS, Investigating the FACTS, DECIDING which facts should be brought before the courts, Investigating the LAW, Deciding in a civil case whether or not to have a JURY and choosing whether or not to have legal REPRESENTATION.
Strengths of Party Control
Gives opportunity to fight and win without state interference in a civil trial which leads to more satisfactions. People are able to take action to resolve disputes and defend themselves
Weaknesses of Party Control
Very expensive so parties mat not carry on with the claim, not all evidence may be brought out or people might not have adequate legal representation which leads to an unfair trial.
The role of the Judge
The judge or magistrate acts as an individual and impartial umpire, ensuring that the parties follow the rules of evidence and procedure.
Responsibilities of the judge
Ensure RULES of evidence and procedure are followed, decide questions of LAW, CLARIFY issues, DIRECTING the jury if their is one, deciding questions of FACT when their is no jury and deciding on the SANCTION or remedy
How does the judge ensure rules of evidence are followed?
Decides admissible and inadmissible evidence and ensures a fair trial that follows court proceedings
How does the judge decide questions of law?
Determines the relevant law to be applied to the case
How does the judge clarify issues?
May ask questions, recall witnesses or call new witnesses with the permission of both parties. To clarify ambiguities.
How does the judge direct the jury?
May address the jury on issues expected to arise or ones that have arisen and the relevance of any admissions made before the trial. e.g. Peter Dupas 2010 - judge told the jury to disregard any evidence surrounding prior convictions
Strengths of the judge
The judge is an impartial umpire which ensures their is no bias and the case is fair as it the judge is separate from any prosecuting authority.
Weaknesses of the judge
The expertise of the judge is not fully utalised and the judge can not offer assistance to any under/non represented party
The Burden of Proof
Which party has to prove the facts of the case and lies with the person bringing the case (Criminal: prosecution, civil: plaintiff.)
the Standard of Proof
The strength of evidence needed to prove the case (Criminal: beyond reasonable doubt which means their must be no reasonable doubt for the accused to be found guilty, Civil: On the balance of probabilities which means that the plaintiff must prove that they are most probably right and the defendant is most probably wrong)
Strengths of the standard and burden of proof
The burden is on the person bringing the allegation so they can substantiate their claim
Weaknesses of the standard and burden of proof
System is seen as being more concerned with proof rather than truth
The need for legal representation
Each party should be represented by legal representatives with equal skill and efficiency. The use of legal representation helps to ensure that the parties are able to present their best possible case, and to assist in achieving a just outcome.
Strengths of legal representation
Each party has the right to so that they can provide logical and reasoned arguments which leads to a fair trial
Weaknesses of legal representation
It is very expensive so it may deter someone from taking action and any unrepresented part will be disadvantaged as it will be an unequal contest.
Rules of procedure in a criminal trial
1. Jury is selected
2. Prosecution opening address
3. Accused reply
4. Prosecution presents evidence and the prosecutions witness will undergo examination in chief, the accused witness will undergo cross examination and then the prosecutions witness will be reexamined
5. Accused may submit their is no case to answer
6. Accused presents their evidence (same as above)
7. Prosecutions closing
8. Accused closing
9. Judge directs jury
10. The juries verdict
Rules of procedure in a civil trial
1. Jury selected if used
2. Plaintiffs opening
3. Plaintiff presents evidence
4. Defenses opening and witness process
5. Defenses final address
6. Plaintiffs final address
7. Judge sums up the case
8. Verdict by the judge or jury
Types of evidence
Oral, sworn statements, Objects, audio or audio-visual and circumstances or facts
What do the rules of evidence ensure?
Fairness, no irrelevant material, no illegally obtained material, no prejudice evidence, no prior convictions are brought before the court in a criminal case
Hearsay - something said by a 3rd party not in court
Irrelevant - if it has nothing to do with facts of case
Opinion - can only give opinion if you are an expert
Bad character - as it could prejudice
Privileged information - secret information that is legally protected
Illegally Obtained evidence
Strengths of rules of evidence and procedure
Keeps contest fair, creates a single continuous hearing, maintains consistency when determining the truth and the cross examination should bring out the truth
Weaknesses of rules of evidence and procedure
Due to delays witnesses may forget the facts, some evidence may never be heard in court, witnesses may only respond to questions asked so can not tell the whole story and juries may not remember all the information due to the long trials
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