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Legal Studies 3/4 > Chapter 7 Sac Study > Flashcards

Chapter 7 Sac Study Flashcards

1
Q

Why should criminal and civil cases be timely in their resolution? (timely resolution of disputes TEE) 3

A
  • civil cases so compensation can be paid and stress caused by taking matter to court/tribunal can be short.
  • Criminal cases to reduce costs & distress of not knowing outcomes
  • should be sufficient time spent preparing cases and all evidence considered so should be resolved in REASONABLE time
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2
Q

What is entitlement to a fair and unbiased hearing? (best to talk about for adversary system)

A
  • Legal system provides procedures that facilitate a fair hearing or trial, free from bias
  • The court processes (including rules of e&p and jury system) should operate to not disadvantage either party, ensuring equality
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3
Q

What is effective access to the legal system? (2)

A
  • all people have right to, and should have equal access to take matter to court, tribunal or dispute resolution body
  • gov also can provide assistance to people who can’t afford access to legal system
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4
Q

What are the major features of the adversary system of trial? (4)

A

2 roles - role of the judge, role of the parties
2 needs - strict rules of e&p need for legal representation
1 - standard and burden of proof

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5
Q

What is the role of the parties in the adversary system? (2)

A
  • each party is responsible for preparing and presenting their own cases
  • They determine how/what evidence is presented
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6
Q

What is the role of the judge in the adversary system? (3)

A
  • to act as an independent, impartial adjudicator and not favour either side
  • ensure each party is treated equally and fairly
  • responsible for the rules of e&p being adhered to
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7
Q

What are 4 types of evidence?

A
  • oral evidence (main emphasis)
  • expert evidence
  • audio or audiovisual
  • circumstantial evidence
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8
Q

what are 3 types of inadmissible evidence?

A
  • hearsay evidence: unreliable bc witness didn’t actually see or hear what occurred
  • irrelevant evidence: does not help establish important facts of case
  • evidence obtained illegally
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9
Q

What is the strict rules of evidence and procedure in the Adversary system? (3)

A
  • strong emphasis on oral testimony
  • All evidence must be relevant and admissible
  • Rules of evidence aimed at encouraging fair and unbiased hearing
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10
Q

what is the difference between evidence and procedure?

A

evidence concerned with proving the facts whereas rules of procedure establish the steps for bringing out the evidence

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11
Q

what is the need for legal representation in the adversary system? (2)

A
  • for adversary system to work effectively there should be equal rep
  • both parties should have equal opportunity to present cases, usually via legal representation
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12
Q

what is 1 strength of the role of the parties in the adversary system?

A

parties responsible for preparation and presentation of their case - each party can present best possible evidence and argument to support it

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13
Q

what are 3 weaknesses of the role of the parties in the adversary system?

A
  • high cost of legal rep
  • vital evidence being missed and truth not disclosed
  • actions of either party may result in delays in preparation in case, leading to higher cost
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14
Q

What are 2 strengths of the role of the judge in the adversary system?

A
  • judge remains impartial - ensuring no bias

- judge is independent of the prosecuting authority - guaranteeing fair treatment

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15
Q

What are 2 weaknesses of the role of the judge in the adversary system?

A
  • expertise of the judge may not be fully utilised

- the judge cannot offer assistance to unrepresented party

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16
Q

what is 1 strength and 1 weakness of the burden and standard of proof in the adversary system?

A

S - party brining the case has to prove the facts to the standard of proof required, every individual treated equal until an allegation is proven

W - the adversary system is more concerned with winning rather than finding out the truth (each party brining out the facts to benefit their side)

17
Q

what is one strength and one weakness of legal rep in the adversary system?

A

S - each party has right to be legally represented which helps maintain fairness

W - any unrepresented party will be engaged in a less-than-equal contest or a less skilled legal rep can be a disadvantage

18
Q

What are 3 strengths of rules of e&p in the adversary system?

A
  • oral evidence helps reveal if the witness is sincere which will help provide a fair outcome
  • examination in chief & cross examination enables evidence to be tested for truth
  • rules of procedure mean that each party is treated in a consistent and fair manner
19
Q

what are 3 weaknesses of rules of e&p in the adversary system?

A
  • witnesses may be intimidated and say something misleading
  • witnesses can only respond to questions, can’t tell story in own words (can’t tell whole story)
  • expert evidence could be unduly relied on
20
Q

What are 4 possible reforms to the adversary system of trial?

A
  • greater investigating role for the judge or magistrate
  • greater use of written statements, rather than oral evid.
  • relaxation of rules of evidence (such as allowing hearsay evidence)
  • greater availability of legal aid
21
Q

What are 2 processes that contribute to the achieving of a timely resolution of disputes?

A

The legal system helps to:

  • Provide systems such as mediation in civil cases to speed up the process
  • cut out the committal hearings in a clear-cut case
22
Q

What are 2 problems that exist in relation to timely resolution of disputes?

A
  • some parties in a civil case may not meet deadlines for pre-trial procedures
  • pre-trial procedures in a civil case are long and time consuming
23
Q

what is one recent change and how has it assisted in achieving a timely resolution of disputes?

A

Amendments in 2010 to the Criminal Procedure Act - introduced changes to simplify criminal procedure :e.g. one court will hear all related charges for incident together, whether summary or indictable. This saves time by reducing need to hear 2 separate committal proceedings

24
Q

What is one recommendation for change and how will this be beneficial in timely resolution of disputes?

A
  • greater use of written statements from witnesses - would save time because cross-examination is very time consuming and can be confusing
25
Q

What are 2 processes that contribute to a fair and unbiased hearing? (BEST LINK TO ADVERSARY)

A

party brining the case has to prove the facts to the standard of proof required, every individual treated equal until an allegation is proven
legal aid - provided to some parties unable to afford legal rep, although the availability of legal aid is limited

26
Q

what are 2 processes that hinder a fair and unbiased hearing?

A
  • vital evidence may be inadmissible

- judge can’t assist unrepresented parties

27
Q

what is one recent change and how has it assisted in achieving a fair and unbiased hearing?

A

Evidence Act - made amendments to the rules of evidence and their admissibility. While there is a strict approach to admissibility in criminal, it is more flexible in civil

28
Q

what is one recommendation for change in relation to a fair and unbiased hearing?

A

making it easier for witnesses to tell their story - instead of being questioned, which will make truth more likely to be found

29
Q

what are 2 processes that contribute to effective access to the legal system?

A

parties:

  • have access to legal rep
  • have opportunity to take a matter to court
30
Q

what are 2 processes that hinder with effective access to the legal system?

A
  • need for legal rep may lead to some parties not pursing their civil claim due to cost
  • a person who reps themselves is disadvantaged
31
Q

what is 1 recent change and how has it assisted in achieving effective access to the legal system?

A

Amendments in 2010 to the Criminal Procedure Act - simplified criminal procedure by making criminal procedure laws clear and accessible. a number of acts where put into this one act to simplify these procedure laws

32
Q

what is one recommendation for change in achieving effective access to the legal system?

A

increased legal aid - lack of funds is barrier to justice. An increase in availability of legal aid could assist parties to defend a case or bring a civil case to court

33
Q

What is the difference between the role of the judge in adversary and inquisitorial?

A

adversary:
- case conducted before independent and impartial adjudicator

inquisitorial:

  • judge takes active role in investigating the case
  • judge conducts questioning of witnesses
  • judge gathers evidence w/ police
34
Q

what is the difference in the rules of evidence and procedure?

A

adversary:

  • all evidence collected by parties
  • strict rules of e&p followed
  • mainly relies on oral evidence

inquisitorial:

  • all evidence collected by judge
  • no strict rules of e&p
  • relies heavily on written statements
35
Q

what is the difference in legal rep between adversary and inquisitorial?

A

adversary:

  • reps parties interests
  • prepare and presents parties case
  • examination of witnesses

Inquisitorial:

  • greatly reduced role
  • may ask questions after judge has completed their questioning
36
Q

what is the difference in the role of the parties in inquisitorial and adversary?

A

adversary:
- parties responsible for preparation and presentation of their case

Inquisitorial:
- parties respond to directions of court in presenting arguments to the court

37
Q

What are 3 ways the inquisitorial procedures are used in Australia?

A

Coroners Court:
- Coroner takes active role in investigating accident
Family Court:
- having judge take far more active role in conduct of the case
VCAT:
- less reliance on legal rep, less adherence to rules of e&p

Legal Studies 3/4 (24 decks)

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