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Chapter 7 – The adversary systemKey Knowledge

We will be starting here

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7.1 – The adversary system – The role of the parties & Judge

Who are the parties? – Criminal & Civil!Inquisitorial Vs Adversary

What is the role of the Judge/Justice/Magistrate? Contested hearings – Plea of guilty!

Law complied with? Miss-trial if not? Hearsay evidence, propensity evidence, evidence of bad character, relevance of evidence

Is a party at a disadvantage if they have no representative?Why do we have them?

Burdon and Standard of proof in criminal and civil matters. Who has the responsibility?

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The role of the parties

Two parties control the preparation and presentation of their case – according to constraints of law.

Prosecution/defendant

Plaintiff/defendant

The parties present their case to best represent their cause? – Can the prosecution exclude evidence that exculpates a defendant?

Test the evidence presented – Cross examination, present own witnesses.

http://www.innocent.org.uk/cases/stevenjohnston/

http://www.betterconsult.com.au/blog/prosecutor-faces-criminal-charges-for-withholding-evidence-is-there-a-need-for-a-prosecutorial-oversight-campaign-in-australia/

Mallard's case also highlighted a miscarriage of justice when police and a senior prosecutor were implicated in tampering with evidence and withholding information from the defense.

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The role of the parties

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The role of the judge

Trial is conducted in a fair and unbiased manner http://www.theage.com.au/national/14-retrials-due-to-judge-errors-20091225-lf2n.html

Rules of evidence, court procedures and rule of law followed

Independent and impartial and cannot assist parties to present their case.

Does not follow the inquisitorial processes in Australia

Determine questions of law regarding how the law is to be applied

A judge can direct a jury to acquit because the standard of proof has not been reached. Jury does not have to accept this.

Explains relevant law to the jury

Explains the points of law to the jury that needs to be proved in the case before them.

Judge determines the sanctions

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The role of the Jury

Only required is a Criminal Trial when there is a plea of not guilty.

Sit in the County and Supreme Courts

Not used in the Magistrates court

Decide guilt/innocence in a criminal trial

Unanimous decision. Some cases Majority verdict can be accepted.

Make a decision based on the facts presented before the court.

Can be used in civil trials by request.

Differing Burdon and standards of proof.

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Your turn

Complete questions 1 – 6 Page 264 of the text