Unit 4 AOS2a - Chapter 7: The Adversary System

Question 1

What is necessary in order for society to operate effectively?

Answer 1

It is necessary to recognise that disputes between members of society will arise and will need to be dealt with effectively.

Crimes may be committed and the people who committed them need to be punished.

Question 2

What could happen without the formal means for resolving disputes or dealing with crimes committed?

Answer 2

Individuals may take the law into their own hands.

Question 3

What must individuals in society be aware of?

Answer 3

Individuals in society must be aware that there is some retribution against those who overstep acceptable limits of behaviour and offend against society. There should also be some form of compensation for those whose rights have been infringed.

Question 4

What does the law need to provide?

Answer 4

The law needs to provide enforcement procedures and avenues of dispute resolution. It should provide a peaceful means for resolving civil disputes or criminal cases.

Question 5

When are laws not effective?

Answer 5

Laws will not be effective if they cannot be enforced.

Question 6

What must occur in the outcomes of criminal and civil cases for society to be satisfied?

Answer 6

The outcomes must be fair and appropriate.

Question 7

What is the purpose of the law commonly seen as?

Answer 7

The purpose of the law is commonly seen as the achievement of justice for all. Justice can be seen differently according to different values in society.

An effective legal system could differ from one society to the next according to the values of each society.

Question 8

What three elements are considered when assessing the effectiveness of a legal outcome?

Answer 8

. Entitlement to a fair and unbiased hearing
. Effective access to the legal system
. Timely resolution of disputes.

Fair, Access and Timely (F.A.T.)

Question 9

Paragraph from the little booklet with questions you got.

Answer 9

A legal system can be seen to be effective if the society that it regulates is cohesive. That is, that the society operates without individuals taking the law into their own hands. It also means that we have consensus on the major issues that arise in society.

The legal system must meet the needs of the community it serves. It does this by ensuring:
. The entitlement to a fair and unbiased hearing which implies the recognition of prevailing values and basic human rights (F)
. Effective access to mechanisms for dispute resolution (A)
. Timely resolution of disputes (T)

Question 10

What happens if the three elements for an effective legal system are met?

Answer 10

Then it can injecting eke be concluded that a just outcome has been achieved.

Question 11

Explain the following element of an effective legal system: entitlement to a fair and unbiased hearing

Answer 11

A fair and unbiased hearing means people are not discriminated against when appearing before dispute resolution bodies. This also means that people should have an equal opportunity to present their case.

Fairness and justice are important concepts in our society. An effective legal system provides structures and procedures that facilitate a fair hearing or trial, free from bias. People should not be discriminated against when appearing before dispute resolution bodies, and should have an equal opportunity to present their case.

Question 12

What are the ways in which a fair and unbiased hearing can be achieved?

Answer 12

. Rules of evidence
. Rules of procedure 
. Presumption of innocence
. An impartial and unbiased judge 
. An independent jury
. Police investigation

Question 13

Explain the following way in which a fair and unbiased hearing can be achieved: rules of evidence

Answer 13

The rules of evidence are followed by both parties = fair

Any evidence that cannot be authenticated is inadmissible (however, some evidence that could be useful in establishing the truth could be disallowed for legal reasons)

Question 14

Explain the following way in which a fair and unbiased hearing can be achieved: rules of procedure

Answer 14

Rules of procedure are strictly followed to ensure that both parties are treated equally in the case and there is consistency in how like cases are presented.

Question 15

Explain the following way in which a fair and unbiased hearing can be achieved: presumption of innocence

Answer 15

Because people aren’t automatically assumed guilty they are innocent until proven guilty - meaning they aren’t judged

Question 16

Explain the following way in which a fair and unbiased hearing can be achieved: an impartial and unbiased judge

Answer 16

This is achieved through the independence of the judge in the adversary system.

Question 17

Explain the following way in which a fair and unbiased hearing can be achieved: an independent jury

Answer 17

Achieved through some being ineligible,mids qualified or challenged if there is potential bias

Question 18

Explain the following way in which a fair and unbiased hearing can be achieved: police investigations

Answer 18

Rights of individuals (eg. Right to silence) are balanced with police powers

Question 19

Explain the following element of an effective legal system: effective access to the legal system

Answer 19

All people should be aware of their right to take a matter to a court, a tribunal or other dispute resolution body, and have equal access to these legal bodies.

The existence of a hierarchy of courts for both criminal and civil disputes, and the availability of a range of dispute resolution processes for civil disputes with each offering specialised services, help to achieve effective access.

Question 20

Advantages and problems of each element???

Answer 20

Seen on first page of booklet

At the bottom of each elements explanation in the textbook

Question 21

What are the ways in which effective access to the legal system is achieved?

Answer 21

. Courts 
. Legal representation
. Dispute resolution bodies
. Legal aid
. Right of appeal
. Dispute resolution methods

Question 22

Explain the following way in which effective access to the legal system is achieved: courts

Answer 22

Expertise - due to court hierarchy

Specialised bodies that hear cases - including Koori court

Question 23

Explain the following way in which effective access to the legal system is achieved: legal representation

Answer 23

Expert lawyers to present to a party’s best possible case and expedite an outcome in the most efficient manner.

Question 24

Explain the following way in which effective access to the legal system is achieved: dispute resolution bodies

Answer 24

Dispute resolution bodies assist parties in some civil cases which are low costs quick and effective methods of resolution.

Question 25

Explain the following way in which effective access to the legal system is achieved: legal aid

Answer 25

Legal aid provided legal advice and representation to people who qualify for assistance.

Question 26

Explain the following way in which effective access to the legal system is achieved: right of appeal

Answer 26

Right to appeal is available for parties who establish they were dealt with unfairly at trial.

Question 27

Explain the following way in which effective access to the legal system is achieved: dispute resolution methods

Answer 27

Dispute resolution methods used by courts and VCAT (eg. Mediation, conciliation and arbitration) provide cheaper and less formal (therefore less stressful) alternatives for dispute resolution.

Question 28

Explain the following element of an effective legal system: timely resolution of disputes

Answer 28

All people should be able to achieve a resolution to a civil case in a timely manner so that any compensation can be paid as swiftly as possible, and the stress caused by taking a matter to a court or tribunal can be as short as possible.

Similarly, criminal cases should be resolved in a timely fashion to reduce costs and the distress of not knowing the outcomes. Justice delayed is justice denied.

However …. (Book and sheet)

Question 29

What are the ways in which timely resolution of disputes is achieved?

Answer 29

. Committal hearings
. Civil pre-trial proceedings
. Directions hearings 
. Dispute resolution methods 
. Cases are heard as one continuous trial

Question 30

Explain the following way in which timely resolution of disputes is achieved: committal hearings

Answer 30

These ensure the accused does not have to wait a long time for a case that is unlikely to succeed.

They also prevent flimsy cases from wasting the time of higher courts (but could just delay some cases going to trial).

Question 31

Explain the following way in which timely resolution of disputes is achieved: civil pre-trial proceedings

Answer 31

These are aimed at parties being fully informed of the case, which could encourage out of court settlements, and clarify issues, thereby reducing delays for that case and the legal system in general (but the exchange of documents takes time).

Question 32

Explain the following way in which timely resolution of disputes is achieved: directions hearings

Answer 32

These assist in Resolving some issues before trial and setting time limits for future stages.

Question 33

Explain the following way in which timely resolution of disputes is achieved: dispute resolution methods

Answer 33

Dispute resolution methods in civil cases such as mediation, conciliation and arbitration are designed to resolved civil cases quickly.

Question 34

Explain the following way in which timely resolution of disputes is achieved: cases are heard as one continuous trial

Answer 34

No stops means that the trial is much faster.

Question 35

What happens when a person is accused of a crime or a dispute arise between two parties?

Answer 35

It might be necessary to resolve the matter in court.

Question 36

What is the system of trial used in the Victorian courts?

Answer 36

The adversary system.

Question 37

What is the adversary system of trail?

Answer 37

This is based on two parties battling to win a legal fight, each party is the adversary of the other. The trial is presided over by an independent and impartial umpire and is conducted according tourney rules of evidence and procedure.

This was inherited from Britain which developed the system of trial from the medieval dispute resolution of jousting.

Question 38

What is the role of the adversary system of trial?

Answer 38

To provide a procedure for the parties to present and resolve their case in the fairest manner possible.

The adversary system operates in both civil and criminal cases.

Question 39

Summarise what happens in a criminal case under the adversary system of trial.

Answer 39

In a criminal case the state is trying to prove the guilt of the accused, whilst the accused is fighting to be found not guilty.

Question 40

Summarise what happens in a civil case under the adversary system of trial.

Answer 40

In a civil case the party bringing the case is trying to prove that the other party was in the wrong and the person who is defending the case is trying to show that he or she was not in the wrong.

Question 41

What does the adversary system not involve?

Answer 41

It does not involve an informal process where the two parties negotiate a settlement. This is because the two sides are meant to battle to win their case in the best way possible, unfortunately at the expense of the other side.

(This therefore differs heaving from other methods of dispute resolution for civil cases, where the emphasis is is on helping the disputing parties reach a resolution between themselves in an informal atmosphere).

Question 42

What are the major features of the adversary system?

Answer 42

. The role of the parties
. The role of the judge
. Standards and burden of proof
. The need for rules of evidence and procedure 
. The need for legal representation

Question 43

Why is a jury not a feature of the adversary system?

Answer 43

Although it is part of the system of trial in some cases, it is not used in the magistrates court and is therefore not a feature of the adversary system.

Question 44

Explain the following feature of the adversary system: the role of the parties

Answer 44

In the adversary system of trial each party controls their own case and has complete control over decisions about how the case will be run as long as the rules of evidence and procedure are followed. This is known as ‘party control’.

Question 45

What do the responsibilities of the parties include?

Answer 45

. Initiating the proceedings
. Investigating the facts
. Deciding which facts should be brought before the court
. Investigating the law
. Deciding whether to have a jury in a civil case
. Choosing whether to have legal representation

Question 46

Explain the following responsibility of the parties: initiating the proceedings

Answer 46

In a civil case the person whose rights have been infringed decides to bring a case against the other party, and the defendant decides whether to defend the case or accept what the plaintiff is proposing.

In a criminal case the state brings the proceedings. The accused does not have a say in whether a matter is taken to court but does decide whether to plead guilty or not guilty.

Question 47

Explain the following responsibility of the parties: investigating the facts

Answer 47

The parties choose the methods they will use to investigate the facts and bring the facts before the court.

Question 48

Explain the following responsibility of the parties: deciding which facts should be brought before the court

Answer 48

Each side will decide which evidence it thinks will best suit its case and, although not all evidence will be brought out (adduced) by either side, the truth should emerge through cross-examination.

However, the prosecution in a criminal case must bring out all evidence known to it, whether or not that evidence is beneficial to the prosecution case. This, to some extent, reduces the adversarial nature of the criminal trial.

Question 49

Explain the following responsibility of the parties: investigating the law

Answer 49

Each party is responsible for finding out the law that is relevant to their case.

Question 50

Explain the following responsibility of the parties: deciding whether to have a jury in a civil case

Answer 50

A jury is optional in a civil case (usually at the choice of the person bringing the case).

Question 51

Explain the following responsibility of the parties: choosing whether to have legal representation

Answer 51

The parties in a civil case and the accused in a criminal case may decide to represent themselves in court.

This is rarely advisable, and the parties often choose to use a solicitor or barrister to represent them in court.

Question 52

Role of the parties (party control) application to the adversary system: what does party control do?

Answer 52

Party control allows the parties to feel that they are in control of the situation and responsible for the outcome. It also satisfies the competitive, or combative, spirit.

Someone who is given the opportunity to fight to win is more likely to feel satisfied with the outcome.

The courts allow the ‘battle’ to take place legally within specified rules of evidence and procedure.

Question 53

Role of the parties (party control) application to the adversary system: what does party control also mean?

Answer 53

Party control also means that, without the interference of the state, the parties to a civil dispute are able to take action to try to resolve their dispute, and people accused of a crime are able to defend themselves if a prosecution is brought against them.

Question 54

Role of the parties (party control) application to the adversary system: what is the problem?

Answer 54

This process is expensive, and the high cost of legal proceedings can contribute to the decision not to carry on with a civil claim, or can lead to an unfair result in a criminal case if the accused is not represented.

Question 55

Summarise the role of the parties in the adversary system.

Answer 55

Party control
The parties can fight to win their case
The parties are more satisfied with the outcome
There is no interference from the state

Question 56

Explain the following feature of the adversary system: the role of the Judge

Answer 56

The judge or magistrate has the role of ensuring that the court processes and procedures are carried out according to the strict rules of evidence and procedure and each of the parties is treated fairly. The judge must act as an impartial umpire and not favour either side.

Question 57

What are the responsibilities of the judge or magistrate?

Answer 57

. Ensuring the rules of evidence and procedure are followed
. Deciding questions of law
. Clarifying issues
. Directing the jury if there is one
. Deciding questions of fact when there is no jury
. Deciding the sanction or remedy

Question 58

Explain the following responsibility of a judge or magistrate: ensuring the rules of evidence and procedure are followed

Answer 58

The judge is responsible for deciding the admissibility of evidence, and can exclude inadmissible evidence from the trial; they also ensure that correct court procedure is followed so that both parties have an equal opportunity to present their case.

Question 59

Explain the following responsibility of a judge or magistrate: deciding questions of law

Answer 59

The judge or magistrate determines the relevant law to be applied to the case before them.

Question 60

Explain the following responsibility of a judge or magistrate: clarifying issues

Answer 60

The judge may ask questions, recall a witness for a matter to be cleared up, or call a new witness with the permission of both sides.

However, they cannot be seen to favour one side, and any intervention will mainly be directed towards clearing up ambiguities in points that have already been made rather than trying to make up for a barrister who is not doing an adequate job.

Question 61

Explain the following responsibility of a judge or magistrate: directing the jury if there is one

Answer 61

At any stage of a trial the judge may address the jury on issues that are expected to arise or have arisen in the trial, the relevance of any admissions or directions made before the trial, or any other matter relevant to the jury in the performance of its functions and understanding of the trial process.

Question 62

Explain the following responsibility of a judge or magistrate: deciding questions of fact when there is no jury

Answer 62

For all cases in the Magistrates’ Court and those civil cases where a jury has not been empanelled, the judge or magistrate decides questions of fact, such as which account of the evidence they believe to be accurate, as well as reaching a verdict.

Where a jury is present, it is the role of the jury to decide questions of fact.

Question 63

Explain the following responsibility of a judge or magistrate: deciding the sanction or remedy

Answer 63

In criminal cases where the accused has been found guilty, the judge decides the sanction. In civil cases without a jury, the judge will decide the remedy if the plaintiff proves their case.

Question 64

Role of the judge application to the adversary system: impartiality

Answer 64

The magistrate, judge or jury should not have had an opportunity to form any preconceived ideas before the trial/hearing and must put aside any personal biases.

Question 65

Role of the judge application to the adversary system: what is essential for the adversary system to operate effectively?

Answer 65

For the adversary system to operate effectively, it is essential that the judge or magistrate acts impartially. If the judge or magistrate favoured one side, then the contest (legal battle) would not be fair.

It is also essential that the decision-maker in the trial (the judge, when there is no jury, the magistrate or the jury) is independent.

Question 66

Role of the judge application to the adversary system: independence

Answer 66

If the decision-maker is not independent, and has preconceived ideas or biases about the case or the parties to the case, then the adversary system cannot operate effectively.

Question 67

Summarise the role of the judge in the adversary system.

Answer 67

. Independent and impartial umpire
. Keeps the contest fair
. Ensure the onus of proof is discharged

Question 68

Explain the following feature of the adversary system: the burden of proof and the standard of proof

Answer 68

The burden of proof (also known as the onus of proof) relates to the question of which party has to prove the facts of the case.

The standard of proof refers to the strength of evidence needed to prove the case.

Question 69

What is the burden of proof in the adversary system?

Answer 69

The burden of proof (also known as the onus of proof) relates to the question of which party has to prove the facts of the case. It lies with the person or party who is bringing the case.

This means that the person who brings the case has to prove that their view of the facts is correct – and not the other party’s view.

There are instances where the burden of proof can be reversed.

Question 70

Who has the burden of proof in criminal and civil cases?

Answer 70

Criminal - prosecution
Civil - plaintiff

(Parties bringing a case/dispute to court)

Question 71

What are the instances where the burden of proof can be reversed?

Answer 71

If the accused is pleading a defence such as self-defence, or insanity, the burden of proof is reversed. The accused has the onus of proving the defence on the balance of probabilities.

In a civil claim, if a defendant brings a counterclaim against the plaintiff – that is, makes a new claim against the plaintiff in the proceeding – then the defendant has the burden of proving the counterclaim

Question 72

What is the standard of proof in the adversary system?

Answer 72

The standard of proof refers to the strength of evidence needed to prove the case. In a criminal case the prosecution must prove the case beyond reasonable doubt; that is, that there must be no reasonable doubt for an accused to be found guilty.

Reasonable in this instance is what the average person in the street would believe to be the case, when the evidence is looked at in a logical and practical manner.

Question 73

What is the standard of proof in criminal and civil cases?

Answer 73

Criminal case - the prosecution must prove the case beyond reasonable doubt, that is, that there must be no reasonable doubt for an accused to be found guilt.

Civil case - the plaintiff must prove the case on the balance of probabilities. This means that plaintiffs in civil cases must prove that they are most probably in the right and the defendant is most probably in the wrong.

Question 74

What happens if it cannot be determined beyond reasonable doubt that someone is guilty?

Answer 74

If the magistrate in the Magistrates’ Court, or the jury in higher courts, is not able to find that the accused is guilty beyond reasonable doubt then the accused must be found not guilty.

Question 75

The burden and standard of proof application to the adversary system.

Answer 75

Both the burden of proof and standard of proof are essential elements of the adversary system.

The burden of proof indicates who has the responsibility of proving their case.

The standard of proof indicates the strength of proof required to decide who is successful.

Question 76

Summarise the burden and the standard proof in the adversary system.

Answer 76

Burden of proof:

• the party who starts the battle
• standards of proof
• the strength of proof that is required

Question 77

Explain the following feature of the adversary system: the need for rules of evidence and procedure

Answer 77

Each court in the adversary system is governed by rules of evidence and procedure that aim to ensure that there is fair and equal treatment for both parties.

Question 78

What are rules of procedure?

Answer 78

The rules of procedure provide the framework in which court cases can take place and through which the court will try to bring about a resolution to the case.

The hearing/trial procedure establishes the steps for bringing out the evidence. The truth should emerge from the evidence presented.

The procedures in court are aimed at treating both sides equally and fairly and creating an atmosphere of respect so that the parties will follow the decision of the court.

Question 79

What are rules of evidence?

Answer 79

Each court hearing or trial is governed by rules of evidence that facilitate the fact-finding task of the courts and aim to ensure fair and equal treatment. Evidence is concerned with the proving of facts. This proof can take a variety of forms. Evidence can be:
. oral evidence given by the witnesses in the form of answers to questions from the barristers
. given in the form of a sworn statement, called an affidavit
. in the form of an object such as the murder weapon, stolen goods, photos, diagrams or tape
recordings
. audio or audiovisual material
. a set of circumstances or facts indicating that a certain event has happened (circumstantial
evidence).

Question 80

What does the adversary system of trial place great reliance on?

Answer 80

The adversary system of trial places a greater reliance on oral evidence, given by witnesses, rather than documentary evidence.

Question 81

What are the rules of evidence primarily for?

Answer 81

The rules of evidence are primarily for the protection of parties, to ensure that:
. The parties are treated fairly
. The jury is not distracted by irrelevant material
. Unreliable or illegally obtained evidence is heard by the court
. Evidence is not unduly prejudicial to the accused (eg. Evidence of bad character should not be given)
. In a criminal case the court hears evidence only about the case before the court, not prior convictions of the accused, which could influence the court

Question 82

When can prior convictions be heard as evidence?

Answer 82

Prior convictions may be heard if propensity evidence is allowed.

(Propensity evidence - Evidence of prior bad acts/behaviour which shows that the defendant is more likely to engage in those bad acts or bad behavior again).

Question 83

What is circumstantial evidence?

Answer 83

Evidence which takes the form of a set of circumstances or facts indicating that a certain event has happened, rather than proving a fact directly. In the adversary system this is allowed.

Question 84

Rules of evidence and procedure application to the adversary system.

Answer 84

The rules of evidence keep the contest fair. Irrelevant material that would confuse the issue cannot be introduced, and unreliable evidence such as hearsay evidence cannot be used.

The truth should emerge through the use of the rules of procedure. The witnesses give their evidence through examination-in-chief, cross-examination and re-examination, and the court should be able to pick out the truth and see where there are flaws in the story.

However, this can depend on other factors, such as whether both sides have legal representation, how well each case is presented (whether there is equal representation) and how well the witnesses respond to questions.

Question 85

What is inadmissible evidence?

Answer 85

. Hearsay evidence
. Irrelevant evidence
. Opinion evidence 
. Evidence of bad character 
. Prior convictions
. Privileged information
. Prejudice
. Evidence obtained illegally

Question 86

Summarise the rules of evidence and procedure in the adversary system.

Answer 86

Rules of evidence - keeps the contest fair

Rules of procedure - truth should emerge

Question 87

Explain the following feature of the adversary system: the need for legal representation

Answer 87

The role of preparing and conducting a case is usually undertaken by legal representatives on behalf of the parties.

Such representation is necessary in the adversary system; the legal representatives are experts who are familiar with the strict rules of evidence and procedure that are essential elements of the adversary system.

These experts help to ensure that the parties are able to present their best possible case, and to assist in achieving a just outcome.

Question 88

The need for legal representation application to the adversary system: equal representation

Answer 88

For the adversary system to work effectively there should be equal representation. Each party has control of their case; both parties should have an equal opportunity to present their cases and, depending on which party is in the right, win the case.

It is extremely difficult for a person to present their own case in either a criminal or civil matter without legal representation, and this can result in an unjust outcome.

Question 89

The need for legal representation application to the adversary system: bringing out the truth

Answer 89

Bringing out the truth and showing your case in the best light depends on your being legally represented, with the best lawyer possible.

The truth should emerge through each party presenting their own case to the best of their ability and the other side showing the flaws in the evidence being presented through cross-examination of the witnesses.

If one party is better represented than the other, this could lead to an unfair advantage and possibly an incorrect outcome.

Question 90

Summarise the need for legal representation in the adversary system.

Answer 90

. To present the case in the best light

. Equal representation required to bring out the truth

Question 91

What is an easy way to remember the strengths and weaknesses of the adversary system?

Answer 91

Talk about the 5 features of the system:
. Role of the parties
. Role of the judge
. Burden and standard of proof
. Rules of evidence and procedure 
. The need for legal prepresentation

Question 92

Explain the the following strength of the adversary system: the role of the parties

Answer 92

Party control is an important feature of the adversary system. The parties are more likely to feel satisfied with the result if they have been able to control the conduct of their case.

It allows the parties to fight their own battles. Having parties striving to win also reflects our combative nature. Party control is particularly important in criminal cases in that a person is being prosecuted by the state but does not have to depend on the state for their defence.

In civil cases, the parties are able to settle their differences with little interference from the state.

Question 93

Explain the the following strength of the adversary system: the role of the judge

Answer 93

The judge operates as an impartial umpire within the adversary system. This ensures that the rules of evidence and procedure are followed and the parties are treated fairly during the trial or hearing.

The accused (in a criminal case) and the parties (in a civil case) should receive a fair and unbiased decision because judges, magistrates and juries make their decisions on the facts before them and have, as far as possible, no preconceived ideas about the parties to a case.

In a criminal case, the judge is independent of the state (not connected to the prosecutor) and therefore people can feel that the decision is fair and impartial. The public is more likely to feel confident in the decision of an independent decision-maker.

Question 94

Explain the the following strength of the adversary system: burden and standard of proof

Answer 94

In a criminal case the accused is presumed innocent until proven guilty, and the prosecution must prove the case against the accused beyond reasonable doubt.

In a civil case the plaintiff must prove the case against the defendant on the balance of probabilities. This means that under the adversary system, the party who is making the allegations is responsible for proving the facts.

This would seem to be a fairer system than having a third party, the judge or magistrate, solely responsible for finding out the facts and deciding who is in the wrong.

Question 95

Explain the the following strength of the adversary system: the need for legal representation

Answer 95

The ability to be represented by legal personnel provides those accused of a crime or parties to a civil case with the opportunity to present their side of the facts in the best light possible.

The parties can choose the best legal representation (that they can afford) to bring out the evidence in an objective and logical manner that will best benefit their case. The parties are not given the same opportunities in the inquisitorial system.

Question 96

Explain the following weakness of the adversary system: the role of the parties

Answer 96

Although there are many advantages to the parties having control of the running of their case, in a civil matter particularly it can lead to further animosity between the parties instead of settling their differences in a more amicable manner.

Party control can also disadvantage the parties in some instances, because it relies on the parties bringing out all the evidence that is favourable to their case. Some vital evidence may be missed and the court may reach an unfair decision.

Question 97

Weakness of the the adversary system - delays (role of the parties)

Answer 97

Delays can result from the parties being in control of their own case. Delays can also be caused by the lack of court personnel and court facilities.

Both sides want to win the case, so a criminal case can be held up for many months while the prosecution is gathering evidence against the accused to try to ensure a conviction.

Question 98

Weakness of the the adversary system - high cost of proceedings (role of the parties)

Answer 98

The high cost of criminal and civil proceedings is primarily caused by the parties being responsible for their own case and having to pay highly for legal representation in order to win the case.

The expense can deter people from seeking to enforce their rights in civil cases, particularly if the claim is small. Quite often the plaintiff may be successful in the case, but have little money remaining after paying their legal costs.

The successful party might have costs awarded in their favour, but they do not usually cover all solicitor–client costs. These costs are usually unrecoverable.

Question 99

Explain the following weakness of the adversary system: the role of the judge

Answer 99

The judge cannot offer the parties assistance. This could be a waste of the judges experienced if some parties are poorly represented.

Question 100

Explain the following weakness of the adversary system: burden and standard of proof

Answer 100

The party bringing the case knows that they have to prove the facts to the standard of proof required.

Question 101

Explain the following weakness of the adversary system: legal representation

Answer 101

The adversary system relies on both sides being equally represented in order for the truth to emerge. However, one part to a case may not be able to afford legal representation of may have inferior legal representation.

Question 102

What is the inquisitorial system of trial?

Answer 102

The inquisitorial system (also called the investigatory system) is a system of trial where the court is actively involved in determining the facts and conduct of a trial. It has its origins in 2000-year-old Roman law, and variations of this system are used in many European, Asian and South American countries.

The differences between the adversary system and the inquisitorial system are less evident in civil disputes than in criminal cases.

Question 103

What is the main role of the inquisitorial system of trial?

Answer 103

Its main role is to find out the truth of an issue.

Question 104

Explain the following feature of the inquisitorial system: the role of the parties

Answer 104

Due to the judge having control of the case in the inquisitorial system, the parties have a greatly reduced role. They are required to respond to the directions of the court.

While this may reduce the effects of some inequities between parties, it places control of their case in the hands of a third party.

Question 105

Explain the following feature of the inquisitorial system: the role of the judge

Answer 105

One essential feature of the inquisitorial system is that the judge takes a more active role in the case. This includes:
. Investigating cases
. Defining the issues to be resolved
. Gathering evidence (together with the police)
. Calling and questioning witnesses

The objective is to find the truth of the matter, so the judge’s role is to find both incriminating and exonerating evidence.

Question 106

Explain the following feature of the inquisitorial system: the burden of proof and standard of proof

Answer 106

No formal burden of proof or standard of proof is set on any party, as the judge is the person responsible for bringing evidence and finding out the truth.

The pursuit of truth is the main objective in this system of trial.

Question 107

Explain the following feature of the inquisitorial system: rules of evidence and procedure

Answer 107

The emphasis in the inquisitorial system is on finding the truth. There is less reliance on strict rules of evidence and procedure in the inquisitorial system.

Many of the evidentiary rules of the adversary system, such as the exclusionary rule do not apply in the inquisitorial system. There is extensive use of written evidence, and witnesses are able to tell their stories, uninterrupted and in a logical form, rather than responding to specific questions.

Evidence led could also include character evidence (either good or bad) and information related to prior convictions. Judges are free to hear all evidence, then to determine which evidence they feel is relevant and reliable.

Question 108

Explain the following feature of the inquisitorial system: the role of legal representatives

Answer 108

Due to the judge’s active role in relation to investigation and questioning, the legal representatives have a lesser role to play in the inquisitorial system.

They assist the judge with finding out the truth. This can include further questioning of witnesses.

Question 109

What are the strengths of the inquisitorial system of trial?

Answer 109

. The decision-maker takes a more active role*
. Witnesses are mostly-called by the decision maker
. There is less reliance on legal representation*
. The decision-maker controls the production of the evidence*
. The cost of an inquisitorial system if trial is mainly borne by the state
. The use of mainly written statements redhead the cost

• = ones you are remembering

Question 110

Explain the following strength of the inquisitorial system: the decision-maker takes a more active role

Answer 110

The decision-maker takes a more active role in investigating to find the truth. Rather than leaving it to the parties to bring out evidence that is favourable to themselves, all available evidence is weighed up by the judge, who will decide which evidence he or she believes to be valid.

Question 111

Explain the following strength of the inquisitorial system: there is less reliance on legal representation

Answer 111

There is less reliance on legal representation. This is particularly important if one party is not well represented.

Question 112

Explain the following strength of the inquisitorial system: the decision-maker controls the production of evidence

Answer 112

The decision-maker controls the production of evidence and it is more likely that all the relevant evidence is brought out. In the adversary system, the parties may use ‘tactical games’ to withhold evidence until the appropriate moment to gain the advantage of surprise.

Question 113

What are the weaknesses of the inquisitorial system of trial?

Answer 113

. The judge is less impartial than in the adversary system*
. There is greater reliance on written evidence
. The legal representation maybe be less effective in influencing the outcome*
. Parties are not able to call their own expert witnesses*
. There is too much power in the hands of one individual (the judge)*
. The parties may feel at the mercy of the investigating judge
. The investigating judge is aware of all reports of the character, personality and past record if the accused

Question 114

Explain the following weakness of the inquisitorial system: the judge is less impartial than in the adversary system

Answer 114

The judge is less impartial than in the adversary system. In the adversary system the judge does not enter the ‘fray of the battle’. The decision-maker in the inquisitorial system gets involved with all aspects of the dispute and could be influenced by outside issues.

The professional ethics of the decision-maker in the inquisitorial system would, however, require him or her to be impartial.

Question 115

Explain the following weakness of the inquisitorial system: parties are not able to call their own expert witnesses

Answer 115

Parties are not able to call their own expert witnesses. An expert witness acting on behalf of the decision-maker may get it wrong and the parties should be able to call their own experts.

Question 116

Explain the following weakness of the inquisitorial system: there is too much power in the hands of one individual (the judge)

Answer 116

There is too much power in the hands of one individual (the judge). Separation of the roles of judge, investigator (police) and lawyers could lead to a fairer outcome.

Question 117

Compare the adversary system and inquisitorial system of trials’ role of the judge.

Answer 117

One of the main differences between the inquisitorial system and the adversary system is the role of the decision-maker.

In the adversary system the judge or magistrate is an independent umpire, making sure that the ‘battle’ is fair and the parties follow the rules. The decision-maker does not enter the arena, but leaves it entirely up to the parties.

The role of the decision-maker in the inquisitorial system is quite different. In this system the decision-maker’s role is more active. He or she will investigate the facts, question the parties and relevant witnesses, examine the law, apply the law to the facts, and reach a decision. The decision-maker is not restricted to considering only those facts that are deemed relevant by the parties, but can take the investigation further to get at the truth.

Question 118

Compare the adversary system and inquisitorial system of trials’ rules of evidence and procedure.

Answer 118

In the adversary system, the court is bound by strict rules of evidence and procedure. The parties are restricted in the timing and method of producing new material, and there are restrictions on the type of evidence that can be produced.

In the inquisitorial system the decision-makers have the discretion to bring out any new material at any time in the process, in their attempt to reach the truth.

Furthermore, the inquisitorial system of trial does not insist on strict rules of evidence and procedure. Any evidence that will help to find out the truth is examined.

Question 119

Compare the adversary system and inquisitorial system of trials’ need for legal representation.

Answer 119

Due to the complex rules of evidence and procedure, each party in the adversary system needs to be represented by an expert legal representative who understands these rules. The legal representative for each party will prepare their case, find and present evidence and argue their case to the court.

In contrast, there is less need for legal representatives in the inquisitorial system, where their role is mainly to assist the judge in finding the truth.

Question 120

Compare the adversary system and inquisitorial system of trials’ role of the parties.

Answer 120

The emphasis in the adversary system is on party control, with the parties determining whether the case will go to court, which court, the mode of trial, and the evidence to be presented at trial.

The parties in the inquisitorial system have less control over their case. This control is predominantly with the judge.

Question 121

Compare the adversary system and inquisitorial system of trials’ burden and standard of proof.

Answer 121

The overriding objective of the adversarial system of trial is to settle a dispute between two opposing parties, by declaring one of them to have won their case. In doing so, parties need to provide proof of their case. The burden of proof is on the party bringing the court action and they need to prove their case according to the required standard of proof.

While it is expected that the truth will emerge during the course of a trial in the adversary system, finding the truth of the matter before the court is the primary objective of the inquisitorial system. The burden of proof and the standard of proof are not as relevant because the case is conducted by the judge from investigation through to the outcome.

Question 122

Explain the use of inquisitorial procedures in Australia.

Answer 122

The adversary system and the inquisitorial system are two extremes on a continuum of trial procedure, with no purely adversarial or purely inquisitorial system existing in practice. While the Australian legal system adopts a predominantly adversarial approach, there are also some elements of inquisitorial procedures in our legal system.

Question 123

What are some examples of inquisitorial procedures in Australia?
See if you need to know this for the sac and exam

Answer 123

. Colonial inquests
. Family court procedures
. Alternative dispute resolution processes
. Etc.

Question 124

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

Answer 124

. Greater investigative role for the judge or magistrate
. Greater use of written statements
. More informal conduct of trial
. Reduce delays
. Greater availability of legal aid

Question 125

When assessing the effective operation of the adversary system what must you consider in order to determine whether each of the three elements of an effective legal system is achieved?

Answer 125

. the processes and procedures that help the achievement of each element
. the processes and procedures that hinder the achievement of each element.

Question 126

Explain the following element of an effective legal system: entitlement to a fair and unbiased hearing (adversary system)

Answer 126

To comply with the principles of natural justice (that is, procedural fairness), each party to a dispute should have equal right to have their say and should be fully informed of the nature of the dispute. The adversary system provides each party to a case with equal opportunity to present their case and receive a fair and unbiased hearing.

Question 127

What are the processes and procedures that contribute to a fair and unbiased hearing in the adversary system?

Answer 127

. party control – allows the parties to be in control of the progress of their case
. independent arbitrators – ensures that both parties are treated fairly, that the rules of evidence and procedure are followed, decide all questions of law and can make a decision on the facts brought before them
. rules of evidence – ensures that certain types of evidence that might inappropriately influence the magistrate, judge or jury, are inadmissible
. rules of procedure – helps to ensure that the truth will come out through the parties to a case being given equal opportunity to bring out the evidence relevant to their case; the truth should emerge from the evidence given
. right to silence – allows people accused of a crime to say nothing so as not to incriminate themselves
. legal aid – is provided to those parties unable to afford legal representation, although the availability of legal aid is limited
. burden of proof – is placed on the party bringing the action, so they have the responsibility of proving the case, according to the relevant standard of proof.

Question 128

What are the problems relating to entitlement to a fair and unbiased hearing in the adversary system?

Answer 128

Both parties might not be on an equal footing because of limitations such as:
. vital evidence that might be inadmissible
. witnesses or the accused who might have difficulties with the language and might therefore be disadvantaged
. interpreters being provided, but some of the evidence possibly being misinterpreted
. legal representation costing too much – someone who is not legally represented is likely to be disadvantaged (not equally represented)
. legal aid possibly not being available
. one of the parties experiencing difficulty in giving evidence because of being nervous or uncertain
. a magistrate or judge may have personal biases
. the jury may have biases that affect the outcome of the trial

Question 129

What are some recent changes which further assist in achieving a fair and unbiased hearing in the adversary system of trial?

Answer 129

F and A: Justice Legislation (Evidence & Other Acts) Amendment Bill 2016 - this bill amends the Evidence (Miscellaneous Provision) Act 1958 covering the use of audio-visual links for giving evidence

F: Witness Protection Bill 2016 - this bill amends the Witness Protection Act 1991 in relation to the governance and administration of protection and assistance. It also provides for a new offence regarding the intimidation of witnesses.

Question 130

Explain the following element of an effective legal system: effective access to the legal system (adversary system)

Answer 130

The adversary system provides the means by which disputing parties in a civil case can have their case heard by an impartial, unbiased court that runs according to strict rules of evidence and procedure.

Question 131

What are the processes and procedures that contribute to effective access to the legal system in the adversary system?

Answer 131

The parties to a dispute:
• can get assistance to take a matter to court through legal aid, if it is available in the circumstances
• have an opportunity to take a matter to court
• have access to legal representation
• can use alternative methods of dispute resolution in civil cases
• can be ordered to participate in mediation, which can assist the parties
• can take some civil matters to a tribunal, which is less expensive and more accessible
• have rights during police investigations to protect them from unfair treatment
• are presumed innocent until proven guilty in a criminal case.

Question 132

What are some problems relating to effective access to the legal system in the adversary system?

Answer 132

There are a number of problems in obtaining effective access to the legal system.
• The need for legal representation in the adversary system may lead to some parties not pursuing their civil claim, due to the costs involved – particularly if they are unable to obtain funding
through legal aid.
• A person accused of a crime may not be able to afford suitable legal representation.
• A person who represents him- or herself is disadvantaged.
• Effective access may be reduced because of difficulties with language and understanding legal
processes.
• People may not be aware of avenues of access to the legal system.

Question 133

What are some recent changes which further assist in achieving effective access to the legal system in the adversary system? (What about recommendations)

Answer 133

F and A: Justice Legislation (Evidence & Other Acts) Amendment Bill 2016 - this bill amends the Evidence (Miscellaneous Provision) Act 1958 covering the use of audio-visual links for giving evidence

A and T: VCAT reforms - the VCAT Act 2014 aims to improve efficiency and thereby red he the costs of taking a dispute to VCAT.

Question 134

Explain the following element of an effective legal system: timely resolution of disputes (adversary system)

Answer 134

Each trial within the adversary system is heard as a single, continuous event. At the conclusion of the pre-trial procedures, a date for trial will usually be set. Once the trial begins, it will continue for the hours, days or weeks needed until its completion. There are no stops in the procedure to allow for gathering more evidence or for further investigation (as can happen in the inquisitorial system).

Question 135

What are the processes and procedures that contribute to timely resolution of disputes (adversary system)?

Answer 135

The legal system helps to:
• minimise delays during the trial, so that it can be heard in a timely manner, thereby enhancing
effective operation of the legal system
• reduce delays in the pre-trial processes through the directions hearings
• cut out the committal hearings in a criminal case when it is a clear-cut case
• provide systems such as mediation in civil cases to speed up the process and assist in achieving a
resolution.

Question 136

What are the problems relating to timely resolution of disputes?

Answer 136

Although the legal system endeavours to achieve a timely resolution of disputes, there are some problems.
• 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.
• The need for interpreters can delay a criminal case coming to court.
• Extra evidence can come to light after the case has been decided.

Question 137

What are some recent changes which further assist in achieving a timely resolution of disputes in the adversary system?

Answer 137

A and T: VCAT reforms - the VCAT Act 2014 aims to improve efficiency and thereby red he the costs of taking a dispute to VCAT.

T: Magistrates’ Court of Victoria initiatives (November 2013) - the Melbourne Magistrates’ Court piloted weekend sittings to manage the demand in its criminal divisions. The weekend sittings have enabled those remanded in custody to come before the court at the earliest oppurtunity for bail applications.

Question 138

What are the recommendations for change that would improve FAT?

Answer 138

F: Making it easier for witnesses to tell their story – Under the adversary system, witnesses are questioned by both sides in order to uncover the truth. However, it can be confusing for a witness, and it would be much easier if they could just tell their story rather than having to respond to questioning. In this way it may be more likely that the truth will be found. (Role of the parties)

A: Increasing the hours of courts and tribunals – If the hours of courts and tribunals were increased to have more evening sessions, it would give the parties greater access because they could attend after work and would not have to take time off work.

A: Increased legal aid – The lack of funds is a real barrier to access to justice, and the use of the adversary system can lead to long trials, with both sides fighting to win the case. An increase in the availability of legal aid could assist the parties to defend a criminal or civil case or bring a civil case to court. (Equal representation)

T: Greater use of written statements – During the trial, witnesses could give a written statement that could be read by the judge and jury. This would save time because cross-examination is very time-consuming and can be confusing. (Rules of evidence)