Introduction to the Adversary System Flashcards
What are the two main systems of trial used around the world?
Adversary and Inquisitorial
Where was the adversary system adopted from?
Australia adopted the Adversary system from Britain
What does adversary mean?
An adversary is an opponent in a contest, conflict, or dispute.
What concept is the Adversary System based on?
Based on the concept that through both parties presenting their case, the truth will emerge through the presentation of powerful arguments.
What are some of the key features of the adversary system?
- An independent and impartial judge
- Two independent and autonomous parties
- Strict rules of evidence and procedure
- A jury is the determiner of fact (in indictable criminal matters) where the accused selects a trial by jury
- Parties are in control of their own case
- The trial is continuous
- Parties have the right to a lawyer
What courts in Australia use the Adversarial system?
Courts of general jurisdiction
Which specialised courts or tribunals in Australia use both the Adversarial and Inquisitorial systems?
Coroner’s court, royal commissions
How does the rule of law apply to the adversary system?
- Fundamental principle of rule of law -> everyone is treated equally under the law.
- the adversary system upholds this principle as the court system has strict rules and controls to ensure the system is consistent and fair
- Another element of the rule of law is that it should be free from arbitrary government.
- rules of procedures and judicial independence ensure the government cannot use power arbitrarily
- courts being open to the public ensure that ‘justice is not only done, but is seen to be done.”
What is admissible evidence?
evidence relevant and permitted to be presented at a trial. This is often referred to as ‘Best’ evidence
What is the adversary system of trial?
A system of trial derived from England, where two opposing parties present conflicting cases, upholding strict rules of evidence and procedure, to an independent judge or jury to determine fact and come to a legal resolution.
What is the burden of proof?
The responsibility placed on the party who has begun legal action to prove their claim before the court.
What is inadmissible evidence?
Evidence not allowed to be presented at trial, due to concerns about its relevance, provenance or accuracy.
What is the inquisitorial system of trial?
A justice system operating widely around the world in contrast to the adversary system of trial, with a key common feature being an investigative judge who is in control of the process.
What is a jury?
A group of citizens who have been randomly selected from the electoral roll to hear a trial, and be the determiners of fact.
What is natural justice?
Rules, and practises outlining how a trial should run to ensure a person’s rights are recognised and upheld, and a just outcome is reached.
What is the standard of proof?
The quality and level of evidence required for the prosecution or plaintiff must reach in order to win their case
Who has the burden of proof in a criminal trial?
The prosecution which is usually the government. This means that the burden generally falls to a police prosecutor in the Magistrates court and the Director of Public Prosecutions in the District and Supreme Courts.
Who has the burden of proof in a civil case?
Whoever begins the legal process (plaintiff) has the burden to prove the allegations they have made against the defendant are true.
Does the defence have the burden of proof?
No, they do not need to “prove” their innocence; they simply need to introduce doubt to the case, as the burden of proof does not rest with them.
Who presents their case first?
The parties with the burden of proof always present their case first in a trial, as the case is theirs to prove.
What is a case where the defence was not required to present a defence case as it was deemed unnecessary?
R v Che [1995] SASC. Justice Bollen asked the jury to consider a not guilty verdict at the conclusion of the prosecution’s case, as it was considered very weak. Under law, juries can consider a not guilty verdict before the defence case is presented, if the prosecution case was considered so poor, convicting the defendant would be unsafe. In this case, it only took the jury eight minutes of deliberation to come to a not guilty verdict.
What is the standard of proof in a criminal trial?
Beyond all reasonable doubt.
Why is the standard of proof in a criminal trial so hard to reach?
An underlying principle in the adversary system is that it is better to acquit and release a guilty person rather than wrongfully imprison an innocent one. Therefore, the standard is high to try and protect innocent people from being wrongly convicted, and punished for offences they may not have committed. Another reason is due to the sanctions applied after a conviction. As convicted offenders can be eligible for losses of both personal and financial freedoms, it is imperative they are only issued to people deserving of them.
