Dispute Resolution Revision V

The Adversary System of Trial: Core Principles: Party control

prosecution/plaintiff and defence gather evidence, call witnesses, present arguments.

The Adversary System of Trial: Core Principles: Neutral judge

impartial umpire, ensures fairness, applies law, directs jury, imposes sentence.

The Adversary System of Trial: Core Principles: Jury (in indictable cases)

fact-finders, community participation, verdict on evidence presented.

The Adversary System of Trial: Core Principles: Presumption of innocence

protects accused until proven guilty.

The Adversary System of Trial: Core Principles: Burden of proof

rests with prosecution/plaintiff.

The Adversary System of Trial: Core Principles: Standard of proof

criminal: beyond reasonable doubt; civil: balance of probabilities.

The Adversary System of Trial: Core Principles: Strict rules of evidence/procedure

hearsay inadmissible; expert evidence allowed; fairness prioritised.

The Adversary System of Trial: Core Principles: Continuous hearings

trial conducted in one sitting.

The Adversary System of Trial: Core Principles: Right to appeal

on law or fact.

The Adversary System of Trial: Strengths

• Protects rights of accused.

• Jury reflects community values.

• Consistent application of rules.

The Adversary System of Trial: Weaknesses

• Costly, slow, reliant on skilled lawyers (advantage to wealthy).

• Jury secrecy limits accountability.

• Strict evidence rules may exclude truth.

The Adversary System of Trial: Competing Tensions

• Fairness vs Efficiency: protections create delays.

• Rights vs Responsibilities: prioritises accused, frustrates victims/community.

• Certainty vs Flexibility: rigid rules create predictability but limit justice.

• Empowered vs Disempowered: wealthy advantaged, vulnerable disadvantaged.

The Jury System: Role & Selection

• Drawn from electoral roll; empanelled under Juries Act 1927 (SA).

• Challenges: peremptory or for cause.

• Jurors determine facts; judge directs law.

The Jury System: Verdicts

• Unanimous – required in murder/treason.

• Majority – accepted (10–2 or 11–1).

• Hung jury – mistrial declared.

The Jury System: Strengths

democratic, reflects community values.

The Jury System: Weaknesses

not representative, secrecy, lack of reasoning.

The Jury System: Reforms

juror questioning, written directions, alternative verdicts.

The Jury System: Competing Tensions

• Fairness vs Efficiency: fairness in deliberation delays process.

• Rights vs Responsibilities: accused’s right to jury vs citizens’ civic duty.

• Empowered vs Disempowered: minorities often underrepresented.

Court Process: Criminal Trial - Pre-trial

• Police investigation; DPP prosecutes indictable offences.

• Bail application – refused if risk of absconding or harm (Thomas Sewell bail refusal).

• Committal/preliminary hearing – test of evidence.

Court Process: Criminal Trial - Trial

• Opening statements (prosecution first).

• Witnesses:

  • Examination-in-chief: party questions witness.

  • Cross-examination: other side tests credibility.

  • Re-examination: clarify issues.

• Voir dire – trial within trial; judge decides admissibility of disputed evidence.

• Closing addresses; judge sums law; jury deliberates verdict.

Court Process: Criminal Trial - Post-trial

• Sentencing hearing: prosecution, defence, and victims contribute.

• Victim Impact Statements considered.

• Appeals: on fact or law.

Court Process: Civil Trial - Pre-trial

• Pleadings: claims/defences exchanged.

• Discovery: sharing documents.

• Pre-trial conferences: encourage settlement.

Court Process: Civil Trial - Trial

• Plaintiff presents first (burden of proof).

• Defendant responds.

• Cross-examination tests evidence.

• Judge decides liability and remedy.

Court Process: Civil Trial - Post-trial

Enforcement: garnishee orders, warrant for sale, bankruptcy.

Court Process: Competing Tensions

• Fairness vs Efficiency: voir dire ensures fairness but delays trial.

• Certainty vs Flexibility: strict process vs adaptable inquisitorial method.

• Rights vs Responsibilities: accused’s right to silence vs prosecution’s duty to present case.

Resolving Disputes: ADR

• Self-help – risky, unlawful.

• Abandonment – costly/stressful.

• Plea bargaining – early guilty pleas reduce sentence (Sentencing Act 2017 (SA)).

• Mediation – informal, voluntary.

• Conciliation – compulsory, mediator assists, enforceable.

• Arbitration – binding decision, contractual disputes.

Resolving Disputes: Advantages

cheaper, faster, flexible, private.

Resolving Disputes: Disadvantages

not always binding, power imbalances possible.

Underlying Principles: Criminal Law

• Judicial independence – avoids bias.

• Presumption of innocence – ICCPR Art 14(2).

• Rights of accused – silence, representation, trial by jury, cross-examine, appeal.

• Double jeopardy – no retrials, except with “fresh and compelling” evidence (Criminal Procedure Act 1921 (SA)).

Underlying Principles: Civil Law

• Resolution – aim to settle disputes, not punish.

• Procedural fairness – impartial decisions.

• Privity – only parties directly involved.

• Open justice – transparency.

• Costs – losing party pays.

Underlying Principles: Competing Tensions

• Rights vs Responsibilities: balance between individual protections and community safety.

• Fairness vs Efficiency: appeals vs timely closure.

• Certainty vs Flexibility: double jeopardy certainty vs reforms for new evidence.

Inquisitorial System: Core Principles

• Judge-led – judges investigate, direct police, question witnesses.

• Dossier system – evidence collected (oral, written, documentary). – All relevant evidence allowed.

• Flexible trial – adjournments allowed.

• Accused – weaker rights; silence may infer guilt.

• No jury – verdict delivered by judges.

• Verdicts – guilty, not guilty, guilt not proven.

Inquisitorial System: Advantages

• Truth-seeking; broad admissibility of evidence.

• Faster, less expensive – Costs borne by state

• Less intimidating for victims/witnesses.

• Reduces reliance on lawyers.

Inquisitorial System: Disadvantages

• State dominance, weaker rights for accused.

• Less strict rules of Evidence

• Judges risk bias as investigator/adjudicator.

• No community participation via jury.

Feature	Adversary (Australia)	Inquisitorial (Europe)
Case control
Judge’s role
Evidence rules
Trial format
Accused’s rights Jury Verdicts Focus

Feature	Adversary (Australia)	Inquisitorial (Europe)
Case control	Parties	Judge
Judge’s role	Neutral umpire	Active investigator
Evidence rules	Strict	Broad, relevant
Trial format	Continuous	Flexible, dossier
Accused’s rights Jury Verdicts Focus	Strong protections Key role in serious case Guilty/Not guilty Rights of the accused	Limited Rare +“Not proven“ option Truth/community interest

Inquisitorial System: Competing Tensions

• Certainty vs Flexibility: adversary rigid, inquisitorial adaptable.

• Fairness vs Efficiency: adversary fairer, inquisitorial faster.

• Rights vs Responsibilities: adversary prioritises accused, inquisitorial society.

• Empowered vs Disempowered: adversary favours wealthy, inquisitorial reduces imbalance.

Rights of Accused & Victims: Accused

• Presumption of innocence.

• Right to silence.

• Right to legal representation (Dietrich v The Queen).

• Right to jury trial for indictable offences.

• Right to cross-examine witnesses.

• Right to appeal.

• Right against double jeopardy.

Rights of Accused & Victims: Victims

• Right to be heard (Victim Impact Statements).

• Right to protection (CCTV testimony, suppression orders).

• Right to information about proceedings.

• Right to compensation (civil or victim schemes).

Access to Justice for Diverse Groups: Aboriginal & Torres Strait Islander Peoples

• Sovereignty/customary law denied (Mabo (1992); Walker (1994); Coe (1979)).

• R v Watt (2007) – interpreter errors.

• Ngatayi v The Queen (1980) – guilty plea misunderstood.

• Nunga Courts – Elders included.

• Dudley Davey (SA) – cultural background in sentencing.

Access to Justice for Diverse Groups: Women

• Barriers in sexual assault trials: confronting abuser, cross-exam retraumatising.

• Conviction rates ~10%.

• Cultural issues: niqab/veil in evidence debates.

Access to Justice for Diverse Groups: Children

• Struggle with legal language.

• Intimidated by cross-exam.

• Youth Court: rehabilitative, closed hearings, anonymity.

Access to Justice for Diverse Groups: People with Disabilities

• Marlon Noble – detained without conviction.

• Rosie Anne Fulton – unable to stand trial, detained.

• UN Convention: equal recognition (Arts 12–13).

• Evidence Act: interpreters/support.

Access to Justice for Diverse Groups: Refugees & Migrants

• Migration Act 1958 – mandatory detention.

• Language, cost, legal aid limits- and access to legal assistance

• Refugee Convention (1951), ICCPR protect rights.

Access to Justice for Diverse Groups: Competing tensions

• Empowered vs Disempowered: vulnerable groups face systemic disadvantage.

• Fairness vs Efficiency: adjustments increase fairness but slow process.

• Rights vs Responsibilities: society’s responsibility to protect vulnerable.