Recap on last week

1. Recap on last week • Three elements of an effective legal system: • Entitlement to a Fair and unbiased hearing • Effective Access to the legal system • Timely resolution of disputes • A judge presides over each trial to ensure the strict rules of evidence and procedure are followed • Specialised courts (such as the Drug Court and Koori Court) exist to resolve particular types of criminal cases and civil disputes • VCAT has an online case management system that allows parties to store, upload and exchange documents electronically • VCAT offers a less formal, cost-effective method of resolving disputes

2. Adversary System

3. First, a terminology refresher

4. Conflict • The word adversary promotes conflict • Two parties battle each other to win their case • Prosecution vs Accused/Defendant • Plaintiff vs Defendant • Rules of the Game • Rules of Evidence and Procedure • Judge/Magistrate is the umpire

5. Key Features • Parties control proceedings • Judge/Magistrate is the umpire • Rules of evidence and procedure apply • Complex rules of evidence and procedure • Emphasis is on winning/proof of facts (rather than finding the truth – although ideally this happens) • Need for legal representation • Focus on oral evidence

6. Parties control Proceedings • Decide whether to bring proceedings in a civil case, or whether to plead guilty or not guilty in a criminal case • Decide whether judge or jury • Decide which evidence to introduce (although in a criminal case, the prosecution must bring out all of their evidence) • Decide what legal representation to have • Decide which witnesses to call • Decide what questions to ask

7. Independent Umpire • Judge/magistrate applies the rules of the game • Independent and impartial – ensures fairness to both parties • Decides which evidence is admissible • Decides which questions are allowed • Rules on matters of law • Decides if the burden of proof has been met • Role is limited – cannot assist parties, even where bargaining strength differs; cannot ask questions except to clarify issues

8. Rules of Evidence and Procedure • Focus on oral evidence – ability to test reliability of witnesses • Some types of evidence not accepted • No conviction on circumstantial evidence • Rules about the procedure to be followed in court – who presents evidence first, cross-examination • Ways jury is empanelled

9. Complex Rules of Evidence • Hearsay Evidence • Irrelevant Evidence • Opinion • Prior convictions • Privileged information • Evidence obtained illegally • Admissibility of evidence

10. Need for Legal Representation • Complex trial procedure • Complex evidence rules • Burden and standard of proof • Legal Aid provides help to parties in criminal trials who would not get a fair trial without legal representation • Equal representation for both parties ensures fairness • (But the quality of your legal representation is not always going to be equal)

11. Burden and standard of proof • Burden of proof is on the person bringing the case • Criminal → Prosecution • Civil → Plaintiff • Standard of proof is the level of evidence required to prove a case • Criminal → beyond reasonable doubt • Civil → on the balance of probabilities • Relates to the presumption of innocence (a basic right that ensures a person is presumed innocent until proven guilty

12. Possible question ‘Every person in Victoria can be confident that, if he or she should face trial in Victoria, the trial will be conducted with impartiality, fairness and independence.’ Referring to the above statement, explain two features of the adversary system of trial. (4 marks) • Task word: explain • Content words: adversary system • Signposting: One feature of the adversary system is … • Also need to link to the statement. Make reference to impartiality, fairness and/or independence.

13. From VCAA This question was generally well done. Many students were able to explain two features of the adversary system with reference to the given statement. The more commonly used features were the role of the judge, and the rules of evidence and procedure. However, students could have used any of the five features of the adversary system of trial in the study design. Some students referred to the jury system as a feature of the adversary system; however, the jury system is not a feature and is a separate system. Weaker students made no reference to the given statement.

14. Sample answer One feature of the adversary system is the role of the parties. The adversary system adopts a process whereby each party has complete control of their own case and decides which evidence to use when defending or prosecuting the case. This supports the idea of independence – it means that the court is not involved at all in how a case is conducted and is left up to the party to decide how to present the case. This also supports the idea of fairness because it means that every party is on a ‘level playing field’ in terms of choosing how to go about the case. Another feature of the adversary system is the role of the judge. The judge in an adversary trial is required to act impartially, as an unbiased independent umpire who does not get involved in the way the parties present their case. This supports the idea of independence (as the judge takes no sides), fairness (as it means that the parties are being ‘umpired’ and are bound by the same rules) and impartiality (as there is no biased umpire).

15. Homework Explain why there is a need for legal representation in the adversary system and evaluate this feature. (6 marks) • Write your answer to this question under exam conditions. Give yourself 12 minutes and write your answer without reference to your notes. Bring your answer to Wednesday’s class to hand in.