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Cambri dge Legal Studi es HSC

adversary system
a system of law where
two opponent sides
present their case to
an impartial judge or
jury
inquisitorial system
a system of law where
two sides present
their cases to a judge
who directs the cases
and calls for particular
evidence
The adversar y system
The criminal justice system in Australia is based
on an adversarial system of law. The adversary
system relies on a two-sided structure of opponent
sides (adversaries) each presenting their own
position, with an impartial judge or jury hearing
each side and determining the truth in the case. The
adver sary system applies to both civil and criminal
matters, but it is in relation to criminal law that
the adversarial system is often most con tro versial.
In criminal law the adversary system pits the
prosecution against the accused, who will usually
be represented by a lawyer. The judge, or jury in
indictable offences, acts as an impartial observer
who determines the accuseds guilt or innocence
based on the evidence and arguments presented.
Australia, like many other countries around the
world, inherited the adversarial system of law with
the English common law system. An alternative to
the adversarial system is the inquisitorial system,
in which a judge or group of judges plays a role
in investigating the case or calling for evidence or
testimony that has not been requested by either
side. Versions of the inquisitorial system are used
in many other countries, as well as some areas of
Australian law, for example in coronial inquests or
royal commissions.
Supporters of the adversarial system often
claim that it is a fairer system because it allows
each party equal opportunity to present their case
and is less prone to abuse or bias by the ofcial
deter mining the case. Cases are carefully prepared
before trial and lawyers have equal opportunity
to present the truth, and the jury as an impartial
observer without any inuence of outside factors.
Opponents of the system argue that in many
cases the competing sides are not equal before
the law, with potential imbalances in resources,
skills or knowledge. Where additional evidence
or testimony would assist the case, the impartial
judge or jury is not in a position to request this,
even though it may assist in achieving justice. The
system has also been criticised for use of the jury
system, where complex technical cases might be
misunderstood due to a lack of understanding of
the evidence presented and where the reasons for
the jurys decision are not disclosed to either side.
Legal personnel i n a cri mi nal tri al
Criminal trials often involve a large number of
participants, both behind the scenes and in the
courtroom itself. They are involved in various
aspects of the case from the beginning of the
investigation through to the end of the trial.
Some of the non-legal participants in a criminal
trial include the accused, any witnesses called to
testify and the police responsible for investigating
the case. Most criminal trials will also involve a
number of legal personnel participating in the
case and some of the most important are out lined
below.
1
Judges and magistrates
Judges and magistrates are judicial ofcers who
preside over court cases and make determinations
in court based on the evidence presented by either
side. Judges and magistrates are legally qualied
professionals who have considerable experience
in the law. They act as the umpires of court cases,
making sure that the rules are followed and that a
fair trial is carried out. Whether a case is heard by
a judge or a magistrate will depend on the court in
which the case is heard.
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56
Cambri dge Legal Studi es HSC
Legal representati on and Legal
Ai d NSW
In the Australian legal system, a defendant has the
right to a fair trial, and Australian courts have ruled
that a trial will rarely be fair for an accused without
adequate legal representation. In the event that a
case goes to trial, it is unlikely that the defendant
will have a fair trial if they represent themselves or
arrange for an unqualied person to defend them.
The High Court recognised this in a 1992 decision
Dietrich v The Queen, which for the rst time estab-
lished a limited right to legal representation in Aus-
tralia. Access to justice is crucial to ensure the legal
system functions fairly and equally for all parties
who come before it, and this is particularly so in
crim inal matters where the consequences of inade-
quate representation for an accused can be high.
Many defendants are able to afford adequate
legal representation and will pay for the services of a
barrister or solicitor to advise
them and repre sent their case
in court. The qual ity of legal
services will vary, and not all
lawyers will have ade quate
experi ence repre senting people
before a court. Some def en-
dants may be able to en sure
that they receive the best pos-
sible defence to the charges
against them, for example by
hiring the most expensive
special ised and experi enced
barristers to rep resent their
case. In most cases this advice
and rep re sen tation will cost a
signicant amount of money.
In rare circumstances an
accused may even elect to
represent them selves in court,
but due to the complex ities of
court and the conse quences of
inadequate repre sen tation in
crimi nal mat ters, this is not
advised unless the off ence
relates to a very minor matter. The courts prefer
people to be represented so that they will receive a
fair trial.
Not everyone has the nances or skill to seek
proper legal representation. This can result in
injustices in the courtroom and denial of access to a
fair trial. In 1979, the NSW Government created the
Legal Aid Commission, under the Legal Aid
Commission Act 1979 (NSW). The Commission pro-
vides legal assistance and representation to people
who are socially and economically disadvantaged to
ensure that they have equitable access before the
law. In doing so it aims to safeguard peoples rights
in the legal system and improve access to justice.
Legal Aid NSW is usually accessed by marginal-
ised and disadvantaged groups in society such as
dis abled persons, women, people of Aboriginal
and Torres Strait Islander backgrounds and people
who are nancially disadvantaged through un-
employment or are low-income earners.
The Legal Aid Commission provides free brief
legal advice sessions to anyone. However, to access
subsidised legal representation, the defen dant must
be means tested. A means test assesses the defen -
dants income and assets to determine whether or
not they have the means to pay for legal repre-
sentation. For criminal matters, the Commission
does not usually assess the merits or likeli hood of
the case succeeding, except for matters on appeal.
Not all matters can be covered by Legal Aid NSW, as
the type of case must fall within the jurisdiction of
specic areas of law in order to be eligible. Legal Aid
NSW will either provide a legal representative or
contribute to wards the cost of a private lawyer.
Unfortunately a grant of legal aid is not free,
and in most cases a contribution must be made
by the user. Legal Aid NSW is largely funded by
the Commonwealth and NSW government and the
NSW Law Society, but funding is limited and is often
considered inadequate to meet the level of demand.
There will still be many instances where people who
are in need of assistance are unable to receive it.
Figure 3.7 Legal Aid NSW provides
legal assistance and representation
to people who are socially and
economically disadvantaged.
RESEARCH 3. 3
Visit the Legal Aid NSW website
(www.legalaid.nsw.gov.au) and click
on the About Us tab on the navigation
bar. Read the information available
and answer the following questions:
1 How many clients were represented
by Legal Aid NSW in the last
nancial year?
2 What percentage of Legal Aid NSW
expenditure was spent on criminal
law? How does this compare with
other areas of law?
3 How many calls were made to the
Legal Aid Youth Hotline?
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Cambri dge Legal Studi es HSC
Challenging jurors
In a criminal trial, both the prosecution and the
defence have the right to challenge either the selec-
tion of the entire panel of jurors, or individual
jurors. Both sides can also exercise a certain num-
ber of peremptory challenges of prospective
jurors, which will disqualify individual jurors with-
out having to give a reason. However, challenging
the selection of a juror can be difcult: neither side
knows anything about them in advance apart from
their names, and peremptory challenges are usually
based on nothing more than name or appear ance
(e.g. age, gender, race, clothing, physique).
Challenges for cause are another type of
challenge based on the person not being qualied
to serve on a jury, being ineligible or disqualied,
or being suspected of bias. It may be the case that
one of the jurors is acquainted with the defendant
or that one of the jurors has been a victim of a
similar crime and therefore may be biased.
Eligibility for jury duty
Australian citizens aged 18 years or over become
eligible to sit on a jury once enrolled on the elec-
toral roll. It is very difcult to gain an exemption
from jury duty and some people view jury duty as
an inconvenience and a burden, especially when
they are selected to sit on a long trial. However, it
is an important part of our justice system for an
accused person to be tried by a group of their peers.
Exemptions can be sought by certain persons,
including those who are aged over 65 years, are
pregnant or care for children full time. There are
also some groups of people in society who are
ineligible to sit on a jury. They include people who
do not speak English, emergency services staff
members (police, re and ambulance), disabled
people, convicted criminals and members of the
legal profession.
Jury role
Before a court case begins, jurors are sworn in.
During the trial, the role of a juror is to listen to the
evidence presented to the court, apply the law as
directed by the judge and come to a verdict as to
the accuseds guilt or innocence.
Jurors are permitted to make notes in order to
refresh their memory when deliberating over a
verdict. They are not permitted to talk to anyone
about the case except for their fellow jurors when
they are all together. They may also ask for clari-
cation on matters from the judge. Through out the
case, they are to remain alert and focused on what
is being presented to them in the courtroom. Their
role is to be unbiased and impartial and make a
judgment based solely on the evidence they are
presented with. Each jury elects a foreperson who
speaks on their behalf.
The jury must remain fair and open-minded
when reaching their decision, they should not be
inuenced by the media or their own personal
beliefs when reaching a decision, it is their job
to apply the law and base their decision on the
evidence and testimony presented throughout the
trial. When deliberating over a verdict, the jury does
not have any set time limits. They are encouraged to
take their time and discuss the court proceedings.
Verdict
A jury is required to reach a verdict of guilty or not
guilty and present that verdict to the court. The
accused will then be acquitted if found not guilty,
or if guilty the judge will then pass a sentence.
Sometimes, it is easy for the jury to arrive at a
decision, other times they can deliberate for days
peremptory
challenge
when the legal team
strikes a juror without
needing a specic
reason
challenge for cause
when the legal team
strikes a juror because
it is believed that for
some reason the juror
will be prejudicial
Figure 3.10 A jury is a panel of citizens, selected at random from a jury
list compiled from the electoral roll, whose job it is to determine the
guilt or innocence of the defendant based on the evidence presented
to them at trial.
ISBN 978-052-114590-9
Photocopying is restricted under law and this material must not be transferred to another party.
Milgate et al 2011 Cambridge University Press