Adversary

• Adversary system

  System of trial used in Australia, adopted from Britain, based on the idea of having a contest or battle between two adversaries (parties) in front of an impartial third party- the trial is one continuous event until a winner is found
• Australian legal system

  • Held under 3 principles of justice: fairness, equality and access
  • Promotes fair trial, timely resolution, unbiased hearing and engagement with court process
  • Principles used to encourage public confidence in the accomplishment of justice
• Criminal law


  Involves action which break the law, are harmful to individual/society and is punishable by the law
• Civil law

  Set out the rights and responsibilities of individuals/groups or organisations
• Civil action

  Disputes between two or more individuals or groups involving the infringement of rights
• Burden of proof

  The party that brings the case to court - prosecution and plaintiff
• Standard of proof

  • Criminal law - beyond reasonable doubt: no other logical conclusion can be reached (based on the facts) except the accused is guilty
  • Civil law - balance of probabilities: plaintiff is most likely or probably in the right and defendant is most likely or probably in the wrong
• Anyone that is accused of a crime has the right to a trial by jury
• Role of the jury

  Provides opportunity for community participation in legal process and for the law to be applied accordingly to community standards. The criminal jury is the decider of facts and decide what should be believed when delivering a verdict.
• Jury composition

  • Criminal- 12 jurors Majority verdict: 10/12 jurors must agree and must deliberate minimum 2 hours before reaching verdict ( 6 hours for murder)
  • Civil- 7 jurors majority verdict: 5/7 must deliberate for at least 3 hours
• Jury selection

  People who are registered to vote at elections are randomly selected for jury service from the electoral roll. Once people are selected, they are notified via the mail and must return a questionnaire to determine if they are eligible and available. If eligible they are required to attend jury service. All people who attend jury service whether selected or not are paid by their employer for their day of attendance.
• Ineligibility for jury service

  • Personal reason: intellectual disability, mental health or physically unfit, Can't speak English
  • Occupation: police officers, legal practitioners or politicians
  • Disqualification: anyone served a prison sentence of imprisonment for 3 or more years. But less than 3 years disqualified from serving on a jury for 5 years after release
• Excused from jury service

  • Exam, holiday, religious reasons
• Example case

  • Smith v Western Australia- note found in jury room after jury had decided on a verdict- not suggested that a juror had been physically threatened to agree with majority decision- so that a decision could be reached. Jury found the accused guilty- Smith appealed conviction to HC- as miscarriage of justice as juror was being physically coerced into a guilty verdict. The appeal was dismissed- having found not satisfied with the juror who wrote the note wasn't coerced- jury must be able to deliberate freely and come to a unanimous decision.
• Reforms: Jury has to give reason for their decision
• Rules of evidence

  Aim to ensure: Both parties get fair and equal treatment, The jury is not distracted by irrelevant material (hearsay/illegal evidence), Evidence is not unduly prejudicial, Evidence relates to present case
• Voir Dire proceedings

  Proceeding to determine if evidence will be admitted or excluded in trial. Is a 'trial' within a 'trial' can take place before or during in the trail. Jury is sent to a separate room while proceeding takes place. Ensures that questions about admissibility of evidence are resolved without jury- makes sure jury is not misled by inadmissible evidence.
• Distinction of admissibility of evidence

  Evidence act 2001 (Tas) has discretion to exclude evidence where evidence is improperly or illegally obtained- such evidence may be admitted at trial by a judge/magistrate in there exercise of discretion, but evidence proved to be obtained under duress must always be disallowed. E.g., illegally obtained home, car recording conversation.
• Objectivity

  • Must be unbiased and opened minded without prejudice
• Listening and remembering evidence


  • Must be able to listen and remember what they heard during trial in order to make a reasoned decision
• Understanding directions and summing up

  1. Judge will sum up the case to jury

  2. Explaining their role and evidence
• Delivering a verdict

  1. Determine question of facts

  2. Apply law as standard by the judge

  3. Jury must come to a unanimous verdict

  4. If not unanimous, judge may allow majority decision depending on offence

  5. If majority jury can't be reached, hung jury meaning accused is not found guilty or not guilty and trailed again at later date
• Strengths: Decision made by cross section of the community representing a diverse group of people which can lead to a decision reflecting general views and values of society.

  reducing bias through being randomly picked, cooperative decision making Allows citizens to participate in CJS to ensure justice has been done
• Weaknesses: May have difficulty understanding complex evidence, law and legal term, coming to a decision, overall difficult task

  Deliberate behind closed doors- unaccountable

  Have to concentrate for long periods of time

  Can be swayed by council and influenced by media  

  Whether hurry is truly unbiased.
• Strengths: makes sure the trial is relevant, reliable and legally obtained The rules of evidence and procedure are designed to ensure every person gets a free trial and there are consistencies in the way they are treated. Ensures fair and unbiased hearing by allowing both parties to be present Examination and cross examination of witness allows both parties to present their case and test evidence All parties are treated equally- both get opening, closing address and submit evidence and witnesses
• Weaknesses: May not lead to a just outcome- the reliance on oral evidence may be limiting-witness might say something that gives wrong impression Increased use of expert witness may advantage the prosecution Witness may be limited- can only respond to specific question, oral evidence relies on memory- delay in proceeding my inhabit that Vital evidence may not be admissible so truth may not come out