Chapter 7 Sac Study Flashcards
Why should criminal and civil cases be timely in their resolution? (timely resolution of disputes TEE) 3
- 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
What is entitlement to a fair and unbiased hearing? (best to talk about for adversary system)
- 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
What is effective access to the legal system? (2)
- 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
What are the major features of the adversary system of trial? (4)
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
What is the role of the parties in the adversary system? (2)
- each party is responsible for preparing and presenting their own cases
- They determine how/what evidence is presented
What is the role of the judge in the adversary system? (3)
- 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
What are 4 types of evidence?
- oral evidence (main emphasis)
- expert evidence
- audio or audiovisual
- circumstantial evidence
what are 3 types of inadmissible evidence?
- 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
What is the strict rules of evidence and procedure in the Adversary system? (3)
- strong emphasis on oral testimony
- All evidence must be relevant and admissible
- Rules of evidence aimed at encouraging fair and unbiased hearing
what is the difference between evidence and procedure?
evidence concerned with proving the facts whereas rules of procedure establish the steps for bringing out the evidence
what is the need for legal representation in the adversary system? (2)
- for adversary system to work effectively there should be equal rep
- both parties should have equal opportunity to present cases, usually via legal representation
what is 1 strength of the role of the parties in the adversary system?
parties responsible for preparation and presentation of their case - each party can present best possible evidence and argument to support it
what are 3 weaknesses of the role of the parties in the adversary system?
- 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
What are 2 strengths of the role of the judge in the adversary system?
- judge remains impartial - ensuring no bias
- judge is independent of the prosecuting authority - guaranteeing fair treatment
What are 2 weaknesses of the role of the judge in the adversary system?
- expertise of the judge may not be fully utilised
- the judge cannot offer assistance to unrepresented party
what is 1 strength and 1 weakness of the burden and standard of proof in the adversary system?
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)
what is one strength and one weakness of legal rep in the adversary system?
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
What are 3 strengths of rules of e&p in the adversary system?
- 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
what are 3 weaknesses of rules of e&p in the adversary system?
- 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
What are 4 possible reforms to the adversary system of trial?
- 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
What are 2 processes that contribute to the achieving of a timely resolution of disputes?
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
What are 2 problems that exist in relation to timely resolution of disputes?
- 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
what is one recent change and how has it assisted in achieving a timely resolution of disputes?
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
What is one recommendation for change and how will this be beneficial in timely resolution of disputes?
- greater use of written statements from witnesses - would save time because cross-examination is very time consuming and can be confusing
