1. Area of Study 2
Court Processes & Procedures
& Engaging in Justice
PART A The Adversary System & Criminal Procedures
Chapters 7 & 8
Unit 4 Resolution and Justice

2. Outcome U402 Part A
• You should be able to
explain the processes and
procedures for the
resolution of criminal and
civil disputes, and evaluate
their operation and
application, and evaluate
the effectiveness of the
legal system

3. Key Knowledge
• Elements of an effective legal system: entitlement to a fair and unbiased hearing,
effective access to the legal system and timely resolution of disputes
• Major features of the adversary system of trial, including the role of parties, the role
of the judge, the need for the rules of evidence and procedure, standard and burden
of proof and the need for legal representation
• Strengths and weaknesses of the adversary system of trial
• Major features of the inquisitorial system of trial
• Possible reforms to the adversary system of trial
• Criminal pre-trial procedures and their procedures, including bail and remand and
committal hearings
• General purposes of criminal sanctions
• An overview of three types of sanctions and their specific purposes

4. Key Terms
• Adversary system
• Burden of proof
• Inquisitorial system
• Propensity evidence
• Standard of proof
• Accused
• Bail and remand
• Beyond reasonable doubt
• Committal hearing
• Crime
• Hearing
• Indictable and summary
offences
• Recidivist
• Sanction
• Summons
• Trial

5. Elements of an effective legal
system
• Entitlement to a fair an unbiased hearing
• Effective access to the legal system
• Timely resolution of disputes

6. The Adversary System of Trial
• The adversary system is the system
of trial used by most courts in
Australia
• It involves; two adversaries putting
an argument to an independent
umpire who will decide which side
is in the right and which side is
wrong
• The adversary system is a contest,
where parties fight to win

7. Major features of the adversary system
• Role of the parties
• Role of the judge
• Rules of evidence and procedure
• Burden and standard of proof
• Need for legal representation

8. Role of the parties
Keywords • active, control
Description • parties have control over how they present their case
• they decide when to commerce proceedings, what
evidence to bring, what law to argue, what witnesses to
call, and what questions to ask those witnesses
Advantages • parties are more likely to feel satisfied with the result
if they have control over the case
• the people who know the situation best are the ones in
charge of the proceedings
Disadvantages • it is stressful and difficult for parties
• it gives an advantage to repeat offenders or wealthier
parties

9. Role of the Judge
Keywords • passive, independent, unbiased
Description • the judge presides over the court, ensuring the rules of
evidence and procedure are followed
• the judge listens to the arguments presented by the
parties and makes an unbiased decision
Advantages • the judge’s impartiality and lack of bias protect the
integrity of the court
• the judge can keep an objective view by not interfering
in the contest
Disadvantages • the judge is unable to assist an unrepresented,
inexperienced or otherwise disadvantaged parties
• the judge’s experience is wasted

10. The rules of evidence & procedure
Keywords • strict, complex
Description • rules of evidence govern what evidence is
admissible and inadmissible
• rules of procedure govern how the trial is run
Advantages • strict rules of evidence make sure it is all relevant,
reliable and legally obtained
• strict rules of procedure ensure a smooth trial and
put parties on equal standing
Disadvantages • strict & complex rules make it difficult and stressful
for parties to present their case
• some important evidence can be excluded on a
technicality

11. The burden & standard of proof
Keywords • person bringing the action, high level
Description • the burden of proof is on the plaintiff or prosecution.
They bring the action, and so have the responsibility to
prove it
• the standard is the amount of proof required: on the
balance of probabilities (civil), or beyond reasonable
doubt (criminal)
Advantages • they ensure unfounded claims do not succeed, and
protect the presumption innocence
Disadvantages • the party that has been wronged has total
responsibility to prove the case
• this adds further stress and cost

12. The need for legal representation
Keywords • high need, necessary for success
Description • because of the other features of the adversary
system, legal representation is vital in gaining a proper
chance of success
Advantages • a confident, experienced and trained professional
can put the case as efficiently and persuasively as
possible
• lawyers take the pressure off parties
Disadvantages • good representation is too expensive for most people
to afford
• the cost of barristers can give wealthier parties an
unfair chance of success

13. The Inquisitorial System
• The inquisitorial system is the system
of trial used in many other countries
such as France, and in some
Australian courts such as the Family
Court and Coroner’s Court
• It is based on the idea that a trained
professional investigates both sides of
the mater and has access to all the
information about it so the truth will
be discovered
• Rather than being a contest, the
inquisitorial system is an investigation

14. Comparison to Adversary
• Inquisitorial System: Role of the parties
Keywords • inactive, passive
Description • parties observe and can have input via
statements and making requests of the judges,
but they do not control proceedings or
evidence
Better than
adversary
• the burden of proof is taken off parties, so it
is less stressful and expensive for them
Worse than
adversary
• parties may feel at the mercy of the judges
and therefore less satisfied with the decision

15. Comparison to Adversary
• Inquisitorial System: Role of the judge
Keywords • active, in control, investigatory
Description • the judge exercises almost complete control over the case
• they collect and examine evidence, choose which witnesses to
hear from, and decide both the relevant law and the facts
Better than adversary • the judge’s expertise is used
• parties are not able to hide or manipulate unfavourable
evidence
Worse than adversary • the judge may lose some of their impartiality, being so
involved in the investigation
• the judge does not have to investigate angles the parties think
are important

16. Comparison to Adversary
• Inquisitorial System: Rules of evidence & procedure
Keywords • flexible, loose
Description • rules of evidence are almost non-existent: hearsay, prior
convictions and written evidence are all allowed
• rules of procedure are not necessary, as the judge conducts
proceedings
Better than
adversary
• parties do not have to navigate complex and stressful
procedures
• all relevant evidence is taken into account
Worse than
adversary
• evidence such as prior convictions may be unfairly
prejudicial to the defendant
• documentary and hearsay evidence cannot be tested
thoroughly

17. Comparison to Adversary
• Inquisitorial System: Burden & standard of proof
Keywords • absent burden, high standard
Description • there is no formal burden of proof, as the judge
investigates all angles of the case simultaneously
• there must still be significant evidence to show that the
defendant was at fault
Better than
adversary
• the injured party does not need to bear the burden of
conducting the case
• unfounded criminal or civil claims should still not
succeed
Worse than adversary • because the defence’s cases is examined before fault has
been proven, the notion that the defendant is innocent
until proven guilty is not felt strongly

18. Comparison to Adversary
• Inquisitorial System: Need for legal representation
Keywords • supportive role, not necessary
Description • legal representation support the parties, explain the
proceedings to them and can make requests of the judge
• they may also assist the judge with the investigating the
case
Better than
adversary
• a party’s success does not rest with their legal
representation, so it decreases costs and doesn’t benefit
wealthier parties as much
Worse than
adversary
• parties cannot choose the person they trust the most to
argue for them give them the best chance of success

19. Possible Reforms to the
Adversary System of Trial
• Many recent reforms to the adversary system involve
adopting aspects of the inquisitorial system
• TASK: complete the above table with the other two reforms listed in the text
Reform Benefits
• Greater investigative role of the judge
allowing them to question witnesses and
gather evidence
• unrepresented parties could be assisted,
and the judge’s expertise would be
utilised
• it is more likely that all evidence would
be uncovered
• Greater use of written statements by
relaxing the rules of evidence
• flexible rules would be easier to navigate
and less stressful for parties. A more
complex picture of events would emerge

20. Effectiveness of the Adversary
System of Trial
• Arguments for and against on each element of an effective legal
system:
• Fair & unbiased hearing
• Effective access to the legal system
• Timely resolution of disputes
See Handout Summary
• Practice Questions:
• Discuss the effectiveness of the Adversary System of Trial (6 marks)
• “A more inquisitorial system of trial is more beneficial than the adversary.”
Discuss the extent to which you agree with this statement (8 marks)

21. Criminal Procedures
• Introduction to Criminal Law
• Definition crime
• Types of offences
• Actus reus & Mens rea
• Age of criminal responsibility
• Parties in a case
• Burden & Standard of proof
• Criminal vs Civil Law
• Make a mind map addressing each of the above points.
Use pages 433 - 436

22. Criminal Pre-Trial Procedures
• Commence once an accused has been charged and
arrested but before trial
• Main purposes:
• Assist police
• Rights / Powers
• Bail hearings
• Clarify issues
• Determine strength of evidence
• Plea hearings

23. Police Powers Vs Individual
Rights
• Watch this clip ….
http://www.youtube.com/watch?v=ob-xNDGMO1c
• Jot down the police powers / individual rights either
shown and/or breached in the clip

24. Bail
• Bail provides for the release of the accused from
custody until the time of trial on the understanding
he/she will appear at the trail.
• This is consistent with the principle of innocent
until proven guilty.
• Upon reasonable grounds, in some circumstances
bail will not be granted

25. Grounds for refusing bail
• There is an unacceptable risk that the accused may
• Fail to appear for trail/hearing
• Commit an offence whilst on bail
• Endanger the safety of the public
• Obstruct course of justice and/or interfere with a witness
• Charge is murder or treason
• Charge is trafficking, or cultivating a drug of dependence, or
importing a traffickable or commercial quantity of drugs
• Already in custody serving another offence and/or failed to meet
bail previously
• Accused requires protective custody

26. Conditions to bail
• In some circumstances conditions may be attached
to the granting of bail
• Such conditions may to ensure the likelihood of the
accused appearing in court and include:
• Surety
• Surrender passport
• Check in with police

27. Remand
• If bail is denied, the accused is remanded in custody
• It is designed to protect the community

28. Restorative Justice
• Focus on rebuilding broken
relationships to overcome
the affects of crime on
victim and offender
• Alternative avenue to trail
• Encouraged for young
offenders (<18) http://youtu.be/WrEApuJ-DTE

29. Committal Proceedings
Applicability
of charge
Sufficient evidence
Plea hearing
Ensure
a fair
trial
Prima Facie
case
Handout Magistrate’s Court – committal proceedings

30. Committal hearings
Definition • Committal hearings are held in the Magistrates’ Court
for all indictable offences going to the County or the
Supreme Court
• The magistrate will look at a summary of the
prosecution’s evidence
Purpose • To see if there is enough evidence to secure a
conviction in a higher court. This is known as a Prima
Facie case
• It prevents weak cases from going to trial
Details • Most committals are conducted using written evidence
such as witness statements and interview transcripts.
These are submitted in a ‘hand up brief’

31. Evaluation of pre-trial procedures

32. Criminal Trials
• Criminal trail is not examinable HOWEVER you
need to have an understanding of how a trial is
conducted in order to understand the workings of
the adversary system and the jury system
Refer to the Going Further Box
“Criminal Trials” pg 460-461
Justice & Outcomes Textbook

34. Criminal Sanctions: Purposes
• Punish
• Deter
• Rehabilitate
• Denunciate
• Protect
Pretty Dancers Ride Donkeys & Ponies

35. Criminal Sanctions: types
• Must know three for exam:
• IMPRISONMENT
• FINE
• COMMUNITY CORRECTION ORDER (CCO)

36. Imprisonment
• Imprisonment is the detaining
of an offender in jail for a
period of time determined on
a level system
• Last resort sanction
• Aims: punish, protect, deter,
denunciate & may rehabilitate

37. Fine
• A fine is a monetary penalty
paid by the offender to the
court and expressed as penalty
units in 2011-12 a penalty unit
was equal to $122.14
• Aims of fines: punish & deter
and at times can denunciate

38. Community Corrections Order
(CCO)
• CCO is a supervised sentence
served in the community which
includes special conditions such
as treatment and unpaid
community work for a specified
number of hours
• Aims of CCO: punish, deter,
protect & rehabilitate

39. Effectiveness of Criminal
Procedure
• When assessing the effective
operation of criminal
procedure we must consider
if the three elements of an
effective legal system is
achieved
• Within each element we
need to consider
• Processes & procedures that
help
• Processes & procedures that
hinder
Element of
effective
legal
system
Processes/
procedures
that help
Processes/
procedures
that
hinder
Fair and
unbiased
hearing
Effective
access to
the legal
system
Timely
resolution
of disputes
Pgs 494 – 502 will assist you

40. End of Part A
• SAC – Thursday 14th August & Friday 15th August
• Look ahead at Part B – begin with Chapter 9 Civil
Procedures

41. References
• Beazer, Humphreys & Filippin (2012) Justice &
Outcomes 12e, Oxford University Press
• Aldous (2008) Making & Breaking the Law, 8th edition,
Macmillan Education Australia
• Humphreys (2011) Legal Notes Units 3 & 4, 2nd
edition, Nelson Cengage Learning
• Jacaranda online, www.studyon.com.au