A first year law student's introduction to basic elements of the Australian adversarial legal system, and the principles of due process and access to justice.

1. Due process? Interpreting
the adversarial model and
the sustainability of justice
within the institutions of the
law
1

2. Review
Governance
•3 arms of govt
•Separation
powers
•Courts
Courts
•Hierarchy
•Independence
•Judiciary
Judiciary
•Impartiality
•Ideology
•Precedent
System
•Process
•Justice
•sustainability
2

3. Learning Outcomes
Systems
identify
differences
between
inquisitorial
and
adversarial
legal systems
Steps
explain steps
in
adversarial
court
proceedings
Principles
critically
analyse the
principles of
due
processes
and their
alternatives
Justice
critically
analyse the
capacity of
the courts to
provide
access to
justice
3

4. Due process = procedural
fairness at every stage
4

5. Contrasting systems
Adversarial Inquisitorial
Role of judge
Role of advocate
Basis of decision
Role of evidence
Truth finding?
Cost
Judicial qualifications
5

6. Elements: Transparency
6

7. Elements: Limitation periods
7

8. Conduct of the trial
Civil
Criminal
8

9. Civil trial process
P outlines
case
Examination
in chief
Cross-
examination
Re-
examination
Summing up
Standard of
proof: BoP
Decision Remedies
9

10. Civil vs criminal trial process
Civil Criminal
Straight to hearing – may require
mediation first
Committal hearing before trial
Plaintiff Prosecution
Calls witnesses Innocent til proven guilty: does not
need to call own witnesses
Jury trial rare Indictable offences: jury trial
Prove on balance of probabilities Prove beyond reasonable doubt
Judge makes finding Further submissions re sentencing
10

11. Due process…
Affects
justice for
the
individual
Supports
a justice
system
11

12. Evidence: some principles
Relevant
Ordinary/expert
Strength,
reliability tested
Right to silence
Public interest?
12

13. Is torture a valid way to
extract evidence?
13

14. Discretion in sentencing
14http://www.creativespirits.info/aboriginalculture/law/mandatory-sentencing

15. Where
does it
come
from?
What
does it
aim to
achieve?
What is
due
process?
15

16. Procedural justice
Justice
Due
process
16

17. Universal Declaration Human
Rights
Article 10
everyone is entitled to a fair and public
hearing by an independent and
impartial tribunal, in the determination of
his rights and of any criminal charge
against him
17

18. Common
law due
process
Right to
know case
details
Right to be
heard
Separate
complaints
heard
separately
Decision
based on
testable
evidence
18

19. When
are
juries
used?
What is the
role of the
jury?
What is
the origin
of the jury
system?
19

20. Juries’ origin
20

21. Juries’ purpose
21

22. A critique
Juries
22

23. Rubin Carter, 1967 (US)
23
All of Rubin's cards were marked in
advance
The trial was a pig-circus, he never
had a chance.
The judge made Rubin's witnesses
drunkards from the slums
To the white folks who watched he
was a revolutionary bum
And to the black folks he was just a
crazy nigger.
No one doubted that he pulled the
trigger.
And though they could not produce
the gun,
The D.A. said he was the one who
did the deed
And the all-white jury agreed.
Bob Dylan ‘Hurricane’ (1975)
Image:
http://www.wsj.com/articles/SB10001424052702304

24. 24
Jury Act 1995 (Qld)
s59 Verdict in criminal cases for particular offences must be unanimous
(1) This section applies to the following criminal trials on indictment—
(a) a trial for any of the following offences— (i) murder; (ii) an offence against the
Criminal Code, section 54A(1) if, because of the circumstances of the offence, the
offender is liable to imprisonment for life, which can not be mitigated or varied under
the Criminal Code or any other law; (iii) an offence against a law of the
Commonwealth;
(b) a trial before a jury consisting of only 10 jurors when it gives its verdict.
(2) For subsection (1)(b), it does not matter that at any time before its
verdict was given the jury consisted of more than 10 jurors.
(3) The verdict of the jury must be unanimous.
(4) However, if on the trial of an offence mentioned in subsection
(1)(a)(i) or (ii)—
(a)the jury is unable to reach a unanimous verdict; and
(b)the defendant is liable to be convicted of another offence not
mentioned in subsection (1)(a)(i) or (ii);
in relation to the conviction for the other offence, section 59A applies as
if the defendant were originally charged with the other offence.

25. Alternatives?
Panel of
judges
Judicial
advisers
Judge
alone
25

26. Access to justice: complexity
26

27. Access to justice: layers of
cost
27
Party bears cost:
Time, lost wages
Legal representation
Court fees
Other party’s costs

28. The law in its
majestic equality
forbids the rich as
well as the poor to
sleep under the
bridges, to beg in
the streets, and to
steal bread.
Anatole France28
Image from: http://en.wikipedia.org/wiki/Mahboba%27s_Promise

29. 29

30. 30
Experiences of culturally &
linguistically diverse people (with permission)

31. Sexual
violence
since 15
Assault in
home
Violence by
partner
Not reporting
assault to
police
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
Experiences of violence (2014, Parliamentary
Library)
Women
Men
31
Domestic violence hotline: 1800 811 811 http://www.dvconnect.org/education-resources/public-
awareness-campaigns/

32. Hindmarsh Island Bridge Case
Q. Which is what you are talking about, is a
question of protecting the island from a lot of
people coming to the island and ruining it.
That’s what it is isn’t it?
A. You interpret it as environment, I don’t. We
have a different interpretation it seems. We
cannot as Aboriginal people, separate
environment and culture. They go hand in
hand.
Q. Why are they different from —
A. Because — no, I can’t talk to you about
that. It is plain to see you would never
understand about that anyway.
32

33. Justice?
33

34. Access to justice
34

35. Access to justice?
35

36. Access to
justice
Advocacy
casework
AdviceCommunity
education
Law
reform
36

37. Alternative dispute resolution
37

38. Resolving legal disputes
Courts
Adversarial
system
Judicial
reasoning
Conduct of
trial
Rules and
principles
Due process
Access to
justice
Non-judicial
resolution
38