Introduction to due process and the adversarial system
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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.
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Introduction to due process and the adversarial system
- 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
- 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
- 15. Where does it come from? What does it aim to achieve? What is due process? 15
- 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
- 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.
- 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
- 38. Resolving legal disputes Courts Adversarial system Judicial reasoning Conduct of trial Rules and principles Due process Access to justice Non-judicial resolution 38