Legal Dispute Resolution

Mid-year Exam and Second Test

What are the two main trial systems used across the world?

Adversary and Inquisitorial

What are the 6 main features of the adversary system? (Different from underlying principles) (

Independent and Impartial judge, two independent and autonomous parties, strict rules of evidence and procedure, jury as a determiner of fact, continuous trial, parties have right to lawyer

Why do adversary system disputes consist of two independent and autonomous parties?

To provide each party equal opportunity to present their case, ensuring fairness and impartiality in the judicial process.

Why does the adversary system have an independent and impartial judge?

To ensure impartiality in procedure and unbiased decisions, creating just outcomes based on the merit of evidence and arguments of parties

What are the 5 principles that uphold judicial independence?

Appointment and Dismissal, Permanency of Tenure, Fixed Remuneration, Judicial Privilege, Free from External Influence

What does appointment and dismissal refer to? (Judicial Independence)

Judges are appointed by the executive and can only be dismissed by a

majority vote from the legislative in case of misconduct or incapacity

What does fixed remuneration refer to? (Judicial Independence)

A judges salary can never be reduced, it can only increase or stay the same

What does judicial privelege refer to? (Judicial Independence)

Judges are immune from prosecution and civil action for what they say in court

What does ‘free from external influence’ refer to? (Judicial Independence)

Judges must make decisions without influence from government, political parties, public opinion, or special interest groups.

What are the four main strengths of judicial independence?

Just outcome for two competing cases, Community faith in uninfluenced judge-made decisions, doctrine of precedent

What is the doctrine of precedent?

A precedent creates by a superior court in the hierarchy that is followed by subordinate courts when dealing with similar matters

What are the 5 weaknesses of judicial independence

Judges are not elected thus do not represent the will of the people, there is no court of appeal beyond the high court, dismissal of judges is difficult, judges do not represent mixed demographics, high wage could attract people for the wrong reasons

How do strict rules of evidence and procedure in the adversary system determine the order of court proceedings?

They require the DPP/plaintiff to present their case and evidence first, the defendant is then permitted to cross-examine and give their evidence.

How do the strict rules of evidence and procedure ensure trial continuity and prevent repeated trials? (Double Jeopardy)

They require the trial to run without unreasonable delays, avoiding mistrials or invalid outcomes that could force a retrial and risk breaching double jeopardy, the finality of a legal conclusion.

What are the two kinds of evidence in the adversary system? (strict rules of evidence and procedure)

Admissible and Inadmissible

What are the 5 kinds of admissible evidence in the adversary system? (strict rules of evidence and procedure)

Direct evidence, indirect evidence, primary evidence, secondary evidence, opinion evidence

What are the 4 kinds of inadmissible evidence in the adversary system? (strict rules of evidence and procedure)

Hearsay evidence, illegally obtained evidence, opinion evidence, past criminal record evidence

What does direct evidence refer to in the adversary system? (strict rules of evidence and procedure)

Original evidence that was seen, heard, smelt, or felt

What does indirect evidence refer to in the adversary system? (strict rules of evidence and procedure)

evidence from which a fact can be inferred

What does primary evidence refer to in the adversary system? (strict rules of evidence and procedure)

original objects and documents relevant to the case

What does secondary evidence refer to in the adversary system? (strict rules of evidence and procedure)

suggests the existence of primary evidence

What does opinion evidence refer to in the adversary system? (strict rules of evidence and procedure)

evidence that has been seen or heard, needs to be presented by an expert in the field

What is an example of direct evidence in the adversary system? (strict rules of evidence and procedure)

Eyewitness account

What are examples of indirect evidence in the adversary system? (strict rules of evidence and procedure)

Fingerprint, DNA, possession of stolen goods

What are examples of primary evidence in the adversary system? (strict rules of evidence and procedure)

Murder weapon, original financial statements

What are examples of secondary evidence in the adversary system? (strict rules of evidence and procedure)

unoriginal copies of documents, photograph of primary evidence

What is an example of opinion evidence in the adversary system? (strict rules of evidence and procedure)

Forensic account by professional, psychological assessment by proffesional

What is an example of hearsay evidence in the adversary system? (strict rules of evidence and procedure)

“My neighbour told me he saw the accused breaking into the house.”

What are two examples of illegally obtained evidence in the adversary system? (strict rules of evidence and procedure)

House search without warrant, unlawful questioning

What are the two kinds of alternate dispute resolution? (ADR)

Direct party control and Third party intervention

What is direct party control as a method of alternate dispute resolution?

Where parties take it on themselves to resolve a dispute

What is third party intervention as a method of alternate dispute resolution?

Where parties agree to seek assistance of independent third party to resolve a dispute

Is alternate dispute resolution an option in criminal disputes?

No, only if there is a lesser plea involving consensus or concession with the DPP

What are the four kinds of direct party control alternate dispute resolution?

Self-help, concession, abandonment of the claim, consenus

What are the three kinds of third party intervention alternate dispute resolution?

Mediation, conciliation, arbitration

What is involved in the direct party control method of self-help? (alternate dispute resolution)

the person wronged takes matters into their own hands and resolves it themselves

What is an example of the direct party control method of self-help? (alternate dispute resolution)

The wronged person puts the neighbours leaves/branches back over the fence

What is involved in the direct party control method of concession? (alternate dispute resolution)

Where the party in the wrong accepts they were in the wrong.

What is involved in the direct party control method of abandonment of the claim? (alternate dispute resolution)

Where the plaintiff/prosecution chooses not to pursue their claim

What’s a civil scenario where the plaintiff may abandon their claim? (alternate dispute resolution)

They decide it would cost too much to pursue

What’s a criminal scenario where the prosecution may abandon their claim? (alternate dispute resolution)

They decide they do not have enough evidence

What is involved in the direct party control method of consensus? (alternate dispute resolution)

Parties reach an agreement

What’s a civil scenario where the parties will reach a consensus? (alternate dispute resolution)

Parties reach a compromise on damages

What’s a criminal scenario where parties will hold concession (reach a consensus)? (alternate dispute resolution)

Parties could agree to a deal where accused pleads to a lesser offence

What is an example of a criminal case where the parties reached a consensus? (alternate dispute resolution)

R v Nemer 2003 where Nemer plead guilty to causing death by dangerous driving after a joint agreement with the DPP on his sentence

What is involved in the third party intervention method of mediation? (alternate dispute resolution)

A mediator is appointed to work with parties in an attempt to resolve the dispute

What kind of method is the third party intervention method of mediation and where is it commonly used? (alternate dispute resolution)

Informal, family disputes

What is involved in the third party intervention method of conciliation? (alternate dispute resolution)

A conciliator who works with parties and advises them of possible consequences that come as a result of their dispute

Are decisions legally enforceable in the third party intervention method of conciliation? (alternate dispute resolution)

No

Why is the third party intervention method of conciliation used in the pre-trial stage of court proceedings? (alternate dispute resolution)

to encourage the parties to resolve their dispute without going to trial

What is involved in the third party intervention method of arbitration? (alternate dispute resolution)

Parties in dispute agree to appoint arbitrator who acts as an impartial “private judge” who makes a binding decision

Is the third party intervention method of arbitration formal? (alternate dispute resolution)

Yes

What does an arbitrator in the third party intervention method of arbitration do? (alternate dispute resolution)

Hears both sides of the dispute, applies relevant law or contract terms to assess the dispute, controls and oversees proceedings, enforces fairness, makes a binding ruling

What do parties agree to before going into the third party intervention method of arbitration? (alternate dispute resolution)

to be legally bound by its decision

What kind of areas is the third party intervention method of arbitration used? (alternate dispute resolution)

employment and buidling disputes

What happens when an agreement to the third party intervention method of arbitration is breached? (alternate dispute resolution)

The other party can take them to court

What is the state court hierarchy?

Magistrates Court, District Court, Supreme Court of South Australia

What is the federal court hierarchy (beginning parallel to the supreme court)?

Federal and Family Court equally, and The High Court of Australia

What are the 5 reasons for the state and federal court hierarchy?

Judicial Review, Doctrine of Precedent, Administrative Efficiency, Specialisation, Flexibility and Choice

What is judicial review?

How the judiciary supervises themselves by reviewing decisions made by lower courts to ensure that laws are being properly applied.

How is judicial review enabled by the court hierarchy?

The innate structure of the hierarchy allows the court to supervise itself through appeal and superiority.

How is administrative efficiency enabled by the court hierarchy?

by distributing cases according to their seriousness and complexity, ensuring higher courts focus on appeals and major matters while lower courts manage less serious, high-volume cases.

How is specialisation enabled by the court hierarchy?

by enabling courts to develop expertise in specific areas of law, adapting procedures to suit different case types

How are flexibility and choice enabled by the court hierarchy?

by enabling parties to choose alternative dispute resolution methods, elect jury or judge-alone trials, and appeal decisions to higher courts

What are the 3 components of the rule of law? (underlying principles of the adversary system)

Supremacy of the constitution, equality before the law, existence of fundamental rights

What is supremacy of the constitution? (rule of law) (underlying principles of the adversary system)

The Constitution is the highest law in Australia, and all laws and government actions must follow it.

What is equality before the law? (rule of law) (underlying principles of the adversary system)

Everyone is treated the same by the legal system

What is the existence of fundamental rights? (rule of law) (underlying principles of the adversary system)

everyone has basic legal protections but in specific circumstances, these rights can be limited temporarily

What are the three components of natural justice? (underlying principles of the adversary system)

The right to a fair hearing, the rule against bias, the right to a decision based on evidence

What is the right to be heard? (underlying principles of the adversary system)

every person involved in legal decision must be given a fair chance to present their case, respond to evidence, and explain their side before a final decision is made

What is the right to know facts and allegations made against the accused? (underlying principles of the adversary system)

the accused must be clearly informed of the charges, evidence, and reasons for the case against them, so they can properly defend themselves

Why does the accused have the right to know the facts and allegations made against them? (underlying principles of the adversary system)

To ensure transparency, fairness, and uphold natural justice

What is the criminal standard of proof? (underlying principles of the adversary system)

Beyond reasonable doubt

What is the civil standard of proof? (underlying principles of the adversary system)

On the balance of probabilities it is more likely than not that

Who holds the burden of proof in a criminal case? (underlying principles of the adversary system)

The prosecution

Who holds the burden of proof in a civil case? (underlying principles of the adversary system)

The plaintiff

What is meant by ‘ignorance is no defence’? (underlying principles of the adversary system)

a person cannot avoid legal responsibility by claiming they didn't know the law

What is the right to remain silent (underlying principles of the adversary system)?

An accused is not forced to answer questions or give evidence that may incriminate them, no negative inference can be drawn from silence

Why is there a right to remain silent (underlying principles of the adversary system)?

to uphold the presumption of innocence and natural justice

What is the right to a jury (underlying principles of the adversary system)?

In a criminal case, the accused is entitled to choose whether their verdict is reached by a judge or jury

Are there juries for civil disputes?

No

What is the role of the jury?

To resolve issues of fact, and to apply the law, as explained by a judge, to those facts in order to reach a verdict

What are issues of fact? (role of the jury)

Disputes about what actually happened in a case

How many people usually make up a jury? (role of the jury)

12 members

How are additional jurors (more than 12) removed to reach a verdict? (role of the jury)

By ballot

What is the maximum amount of members allowed in a jury, and why? (role of the jury)

15 “If the court thinks there are good reasons for doing so”

Which act allows for more than 12 jurors? (role of the jury)

Juries Act 1927

What conditions allow for less than 12 jurors, and what is the minimum number? (role of the jury)

If a juror is excused, absent, or dies, the trial can continue with as few as 10.

How many jurors decide a verdict in a case of additional jurors (more than 12)? (role of the jury)

12 jurors

In what two steps are juries selected? (jury selection)

Compiling a list and empanelling

What is the Australian Electoral Commission’s list? (jury selection)

The first step of juror selection, the list is requested by the sheriff of court made up of 6000 eligible people on the voting roll

How many people are randomly selected by the sheriff of court from the Australian Electoral Commission’s list of 6000? (jury selection)

400

What ages are not included in the Australian Electoral Commissions list of 6000? (jury selection)

Anyone under 18 or over 70

What are the two main vetting processes involved in jury selection?

Sheriff’s vetting and Individual vetting

What is involved in sheriff’s vetting? (jury selection)

All 400 on the list are compared against ineligibility criteria and removed accordingly

What are the two kinds of ineligible criteria of a juror? (jury selection)

Disqualified persons and General ineligibility

Who qualifies as a disqualified persons? (jury selection)

those outside jury zones, sentenced to life imprisonment, who’ve been in prison for more than 2 years, who’ve been imprisoned within the last year, who’ve been convicted of an offence punishable by imprisonment within the last 5 years,

Who qualifies as generally ineligible? (jury selection)

Those non fluent in english, mentally or physically unfit, the governor, members of the legislative and executive, members of the judiciary, justices of the peace, government employees dealing with punishment, justice, and the courts

Whose spouses are generally ineligible? (jury selection)

the governor, members of the legislative and executive, members of the judiciary, justices of the peace

What are south australia’s three jury zones? (jury selection)

Adelaide Jury District, Northern Jury District, South-Eastern Jury District