Adversarial System Objectives PDF

Adversarial System: - Rule of Law - The principle that the law applies to everyone, even those who govern. No one is above or below the law. - Statute Law - Laws made by Parliament (An Act of Parliament passed by a state or commonwealth parliament) - Common Law...

Adversarial System: - Rule of Law - The principle that the law applies to everyone, even those who govern. No one is above or below the law. - Statute Law - Laws made by Parliament (An Act of Parliament passed by a state or commonwealth parliament) - Common Law - Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is bound by the doctrine of precedent in which the decisions of higher courts in a hierarchy are binding on lower courts in the same hierarchy where the material facts are similar. - Features of Criminal Law - A crime is an act that harms society punishable depending on its case. Criminal charges are laid by the DPP and when an individual is charged with a crime the state is definitively against that person. There is a Defendant and Prosecution. Burden of proof is on the prosecution and it is up to the prosecution to prove this case, the defendant doesn't have to prove their innocence. The standard of proof is **beyond reasonable doubt** (the higher burden) and the judge or jury must find the person not guilty if they have a reasonable doubt. The types of crime range from destruction of property to theft and murder. The outcomes are to pay a fine, prison sentence, community service, house arrest etc. - Features of Civil Law - Civil law covers all other areas of law excluding criminal, covering disputes between 2 parties (person vs person, company vs company etc.). Here there is a plaintiff or application vs the defendant or respondent. The burden of proof is on the plaintiff (you can't throw an accusation in court and make the defendant prove its not true, the plaintiff has to prove its true.) the burden of proof here is the **balance of probabilities**, not 50-50 but a lower bar than in criminal cases. If a judge or jury feels confident in wrongdoing, they may find the accused liable. Types of offences include taxation, IP infringement, building rights etc. The outcome is that you may be forced to take action, stop taking action or pay damages that may cause bankruptcy, **can't go to prison**. - Overview of Court Hierarchy - - Features of the Adversarial System (key roles and evidence procedure) - The adversarial system is used in common law systems and features two opposing parties who present their case to an impartial adjudicator who then makes a decision based on the evidence and arguments presented. This system is based on the belief that the truth is most likely to emerge when both sides of a case vigorously present their arguments. - Strengths: - Presumption of innocence: One of the fundamental principles of the adversarial system is the presumption of innocence. This means that individuals accused of a crime are considered innocent until proven guilty in a court of law. This protection of individual rights is a cornerstone of the system. - Burden of proof: In the adversarial system, the burden of proof rests on the prosecution. They are required to prove the defendant\'s guilt beyond a reasonable doubt. This places a significant responsibility on the government to ensure a fair and just outcome. - Transparency: Both sides in the adversarial system are obligated to disclose evidence to the other party. This transparency helps prevent surprises during trial and ensures that each side has access to relevant information, promoting fairness and equity. - Competitive motivation: The competitive nature of the adversarial system motivates attorneys to be diligent in their preparation, research, and presentation of cases. This can lead to a more thorough examination of evidence and arguments, which ultimately benefits the pursuit of justice. - Legal safeguards: The adversarial system provides individuals with the opportunity to exercise their legal rights, including the right to remain silent, the right to an attorney, and the right to confront witnesses. These safeguards protect the accused from potential abuses of power by the government. - Weaknesses: - Emphasis on winning over truth: One of the most significant criticisms of the adversarial system is that it often prioritises winning the case over seeking the objective truth. Attorneys may focus on legal manoeuvres, tactics, and strategies to discredit witnesses or create doubt rather than uncovering the actual truth of a matter. - Resource disparities: Wealthier parties in legal disputes often have a significant advantage in the adversarial system. They can afford high-priced legal representation, expert witnesses, and extensive resources, leading to unequal access to justice. This can result in a disadvantage for less affluent individuals or organisations. - Complex and lengthy proceedings: Adversarial trials can be lengthy, complex, and expensive. This complexity can overwhelm individuals without legal expertise, and the protracted legal process can lead to delays in justice, which can be frustrating for both plaintiffs and defendants. - Ineffective representation: Not all defendants receive competent legal representation. Overburdened public defenders, underfunded legal aid systems, or inexperienced attorneys may struggle to provide effective representation, potentially leading to miscarriages of justice. - Delay in justice: The thorough investigation, legal manoeuvring, and extensive preparation required in adversarial cases can lead to significant delays in resolving legal matters. This can hinder the timely resolution of disputes and the delivery of justice. - Focus on punishment: In criminal cases, the adversarial system often emphasises punishment as a primary goal, potentially neglecting rehabilitation and restorative justice principles. Critics argue that this approach can perpetuate a cycle of crime. - Sentencing - Principles of Sentencing: Retribution, Deterrence, Protection, Rehabilitation - **Retribution** is the punishment for committing a crime in order to "right a wrong". Criminals are paying back society for their wrongdoing. - **Deterrence** is the disincentivising of individuals from committing crimes by making them think about the consequences - **Protection** is when the legal system is protecting society from dangerous actors who are at risk of reoffending and causing harm based on their previous actions. - **Rehabilitation** is when the courts reform an offender to reduce recidivism, or the likelihood of them reoffending. They are meant to change their ways based on prison punishment. - Factors Affecting Sentencing: Mitigating and Aggravating Factor - Aggravating factors are any factors that increase the culpability (responsibility) of a crime and thus mean the sentence should be increased in severity, they are anything that can make the offence worse such as abuse of a person of authority, subjecting victims to extreme pain etc. - Mitigating factors are factors that reduce the culpability of the offender, they are any reason that can alleviate the severity of the sentence on the offender such as mental illness, age etc. - Totality Principle - The totality principles refer to the idea that the sentence given to an offender must reflect the seriousness of the offence (considering all factors). It should not be too crushing to give the offender no hope of a useful life after the sentence is served. A judge is required "to ensure that the total effective sentence bears a proper relationships to the overall criminality involved in all of the offences. The court should not impose a crushing sentence that destroys any reasonable expectation of a useful life after release. - Sentencing Options: Imprisonment, Fines, Home Detention, Community Service - Fines: - An amount of money that a court may order you to pay as a penalty for committing an offence. A fine may be the whole sentence or just part of the sentence. - Imprisonment: - The most severe penalty that courts in Western Australia can impose. The duration of the sentence is decided by the judge, but mandatory sentencing laws provide guidelines for decisions. - Home detention: - A less severe penalty that requires the accused to reside at and remain within a particular residential address 24/7. - Community service: - Work that a judge orders a defendant to perform as a form of retribution that benefits the community. Community service can be ordered as an alternative to other forms of punishment, such as incarceration, or in addition to them. - Mandatory Sentencing: - Mandatory sentencing requires offenders serve a predefined term of imprisonment for certain crimes, commonly serious or violent offences. These sentencing laws in WA were introduced in 1996 in response to increased crime rates. Murder has a minimum sentence of life, and assaulting a police officer has a minimum sentence of 6 months. - Case Study: Zak Grieves & Daniell Staskos - Zak Grieve\'s case is a compelling example of the consequences of mandatory sentencing laws, particularly in the Northern Territory, where a 20-year non-parole period is imposed for those convicted of murder. Grieve was sentenced to this mandatory term for his involvement in the murder of Ray Niceforo, despite not being present at the crime scene. His friends, who were directly involved in the killing, received lighter sentences---Darren Halfpenny, who held the victim in a headlock, and Christopher Malyschko, who struck the fatal blow, were both given 20 years and 18 years non-parole, respectively. However, Malyschko\'s sentence was reduced due to a rare exception in the mandatory sentencing law, as the victim had previously threatened him, highlighting the inconsistency in how the law was applied. Grieve, who was not physically present during the murder, was still given the harshest sentence, underscoring the rigid and often unjust effects of mandatory minimum sentencing, which ignores individual circumstances and the role each person played in a crime. - This case also sheds light on the disparity in punishment between Grieve and his friends, particularly in terms of their roles in the crime. Grieve\'s sentence was especially controversial because of the lack of forensic evidence linking him directly to the murder, with some even suggesting that he may have been innocent of the actual killing. Meanwhile, the person who orchestrated the crime, Bronwyn Buttery, received a much lighter sentence after pleading guilty to manslaughter despite being the mastermind behind the murder. The inconsistencies in sentencing have led to frustrations, particularly for Grieve\'s family, who argue that the mandatory sentencing laws unfairly targeted their son while others who were involved in the murder, received more lenient punishment. This case underscores the potential for mandatory sentencing laws to create unjust outcomes, particularly in complex situations where a person may not have played a direct role in the crime. - Advantages of MS - Mandatory sentencing ensures adequate retribution for offending conduct. Judges are often greatly removed from the norm of society, and live and work in affluent areas where there are low crime rates and rarely experience physical assault firsthand.13 As a result, it is argued, that judges are often too lenient on offenders. - Mandatory sentencing deters offenders from engaging in criminal conduct, and as a consequence, reduces crime and promotes social stability. Offenders will desist from committing crimes if there is a specific outline for the consequence of the crime. - Mandatory sentencing provides consistency, eliminating any inconsistency in sentencing and ensuring fairness by treating offenders alike - MS reduced incidents of police assaults by 28%. - There are exceptions to MS - defendants can receive reductions in exceptional circumstances (e.g. Zak Grieve). - Consistency of sentencing - National Australian survey: 70% of respondents believed that sentences needed to be more punitive - Disadvantages of MS: - Mandatory sentencing undermines the liberal democracy principle of power in Australia by removing judges\' ability to decide sentences based on individual circumstances (considering mitigating and aggravating factors). Instead, fixed minimum sentences are set by law, meaning the legislature controls part of the role that judges usually have. This goes against the idea of having checks and balances to stop one branch of government from having too much power, as the legislature interferes with the role of the judiciary, obstructing the separation of powers. - No matter how heinous the crime is, the law is and always will be applied as a fluid principle, each case and story having its own context, and therefore aggravating and mitigating factors on the deserved penalty and punishment. This takes away from the overall discretion that judges deserve to have. - Case: 16yo with one prior conviction received a 28-day prison sentence for stealing a bottle of water. - Case: 17yo received a 14 day prison sentence for stealing orange juice and minties despite it being a first time offence. - Case: Indigenous 15yo received a 20 day prison sentence for stealing stationery and died in custody. - Natural Justice and Wrongful Convictions - Key principles of Natural Justice: - Impartial Adjudication - Judges and Juries must be unbiased, and impartial. The statement: \"no one should judge their own case\", describes how the case should not be affected by the people involved. This process upholds natural justice, as the people involved in the case do not influence the process of the trial. This allows everyone involved to be equally subject to the law. - Hearing Both Sides - Both parties have the right to be effectively heard in court. This means that everyone must have access to legal representation, and everyone has the right to hire and consult with a lawyer. The case of Dietrich v The Queen (1992) established a common law right to legal representation. This process upholds natural justice because when both sides of the case are heard equally, it means that everyone involved is subject to the law equally. - Evidence-Based Decisions & Rules of Evidence - In order to be just, court decisions must be based on evidence and there are strict rules about what evidence can be included in court and what cannot be considered by a jury. Admissible evidence is any type of document, witness testimony or evidence that can be legally used in court evidence is inadmissible if it is not relevant to the case, it has been contaminated or improperly handed, a witness was coerced or bribed to testify, or if a witness states their opinion or hearsay. This process upholds natural justice as it means that decisions made in court are based on factual evidence, and not on any bias. This ensures that trials are fair and consistent ensuring judicial fairness. - Open Trials - All court systems and trials in our system should be able to be accessed and watched, and decisions and judgements should be public. We can report on them and talk about them in the media. This provides a greater opportunity for justice to be achieved if everyone knew what happened. If the court was private, then society would be struggling to ensure the court is proper. Most trials are fully accessible, allowing court decisions to be scrutinised, raising public confidence in the Court system as people feel like their views are represented in Court. There are limits on what is published on children's case and a defendant's name might be suppressed because if the name is published the victim could become clear. - Wrongful Convictions & Cases - Andrew Mallard - Andrew Mallard's life was supended in 1994 when he was wrongfully convicted of the murder of Pamela Lawrence, a jeweler from Perth. The case began on a stormy evening when Pamela's husband found her bludgeoned in her store. Although there was no DNA, blood, or fingerprint evidence linking Mallard to the crime, police became focused on him due to his erratic behavior, depression, and social isolation. Mallard, who had been admitted to a psychiatric hospital after a mental breakdown, was questioned extensively without legal support or mental health assistance. Under pressure and after receiving details from undercover officers, Mallard provided statements that were manipulated to appear as confessions. Police presented a wrench drawing he made during questioning as a crucial piece of evidence, arguing that he used such a tool to kill Pamela. Mallard was convicted and sentenced to 20 years in prison, a verdict based largely on his manipulated statements rather than forensic evidence. - Over the next decade, Mallard's family, journalists, and lawyer John Quigley worked tirelessly to prove his innocence. Quigley uncovered crucial suppressed evidence, including a forensic report indicating that a wrench could not have caused Pamela's injuries. Investigators also identified a palm print at the crime scene matching Simon Rochford, who was already in prison for another murder with strikingly similar details. The breakthrough led to Mallard's exoneration in 2006 after 12 years of wrongful imprisonment. Although he received \$3.2 million in compensation, Mallard struggled with PTSD and stigma, facing social alienation and mental health challenges. In 2019, Mallard tragically died after being struck by a car in California, just as he seemed to find happiness with a new partner. His case exposed significant flaws in the Western Australia justice system, with calls for accountability against the police officers involved. However, despite disciplinary recommendations, the officials faced minimal consequences, underscoring the lasting injustices Mallard endured even after his release. - John Button - Kathleen Folbigg: - Kathleen Folbigg's case, widely publicized as one of Australia's most infamous serial killer trials, involved her conviction in 2003 for allegedly killing her four children, Caleb, Patrick, Sarah, and Laura, over a span of a decade. Each child's death had been initially attributed to natural causes, including Sudden Infant Death Syndrome (SIDS) and complications like myocarditis and epilepsy. Despite this, investigators found a series of diary entries by Folbigg in which she expressed guilt, self-doubt, and grief about her parenting. The prosecution interpreted these entries as indirect admissions of guilt, arguing that she had smothered each child in a fit of frustration or despair. Folbigg's husband, Craig, provided further testimony against her, recounting her apparent struggles with motherhood. This circumstantial evidence, along with the deaths of four infants in one family, painted her as a "monster mother" and Australia's worst serial killer, leading to a conviction on three counts of murder and one of manslaughter. Her sentence, a minimum of 25 years, drew massive media attention, and the narrative of Folbigg as a calculating killer dominated headlines and public perception for years. - Folbigg maintained her innocence throughout, but it took nearly 20 years, numerous scientific breakthroughs, and the persistent efforts of supporters to unravel the case. In 2018, Professor Carola Vinuesa and other scientists began investigating genetic links to Folbigg's daughters' deaths, discovering a rare CALM2 gene mutation shared by Folbigg and her daughters, which could cause sudden cardiac arrest. This and similar mutations had led to infant deaths in other families worldwide. As evidence grew, the Australian Academy of Science backed Folbigg's legal team, petitioning for a new inquiry. In 2023, after extensive genetic testing and an analysis of her diary entries by psychologists, an inquiry determined her statements likely reflected grief rather than confessions of guilt. These scientific findings were instrumental in Folbigg's eventual pardon, highlighting gaps in the legal system's treatment of complex scientific evidence. Folbigg's release underscored the justice system's need to better accommodate forensic science, especially in cases hinging on circumstantial evidence. After two decades in prison, Folbigg's story became a powerful example of the risks of misinterpretation, advocating for a more cautious, evidence-informed approach in legal proceedings. - The extent to which the Adversarial System upholds the principles of Natural Justice - The Adversarial System is a common law system in which two adversaries present their case to an impartial judge. Natural justice is the belief that there are core principles of judicial fairness in society that must be upheld. To evaluate whether our Adversarial System upholds the principles of Natural justice, the principles we must consider are impartial adjudication, hearing both sides and evidence-based decisions. The Adversarial System upholds the principles of justice to a moderate extent. - The Adversarial System upholds the principle of Evidence-Based Decisions (EBD) to a moderate extent. EBD is the belief that court decisions must be based on admissible and relevant evidence. Although there are some key strengths, the case of Andrew Mallard highlights its shortcomings. Some key theoretical strengths of the EBD are that both sides have the opportunity and are incentivised to present the best evidence and arguments. There are rules of evidence in place to ensure that evidence is relevant, reliable, and not withheld. However, this incentive can sometimes be taken too far, encouraging the parties, to try to consider evidence that would normally not be admissible. In the Mallard case, while knowing coerced evidence is inadmissible, undermining EBD, the police subjected Mallard (a mental health patient) to an intense interrogation that led to him being stripped naked and beaten. Coupled with "leading" questions, the police forced him to provide a statement that fit their narrative. He was also coerced into explaining how he might've committed the murder. When shown a photo of a wrench, being told it could be the murder weapon, Mallard, already under pressure, went along with this idea. Despite a lack of evidence linking him to the crime, the police still used this statement in the trial, downplaying their mistreatment of him to make the evidence admissible. Therefore, it is evident that the Adversarial system upholds the principle of EBD to a moderate extent. While it generally strives to be effective, with strict policies about the introduction of evidence in court, the case of Mallard highlights how these policies can still be undermined, leading to injustice. - The Adversarial system upholds the principle of Impartial Adjudication (IA) to a high extent, highlighted best in the case of Scott Austic. IA is where the adjudicator is unbiased and makes decisions based solely on the evidence presented in court. A key theoretical strength of IA is the fact that judges can't find evidence themselves, increasing control and prejudicing prejudice. Decisions are made purely off of the evidence presented in court. The division of roles in having the judge focus on matters of law and the jury on determining facts and deliberating on the guilt or innocence of the accused ensures that decisions are made with minimal bias as legal expertise and decision-making are distinct from fact-finding. In the Scott Austic case, the jury immensely upheld IA. The jury was told that Austic had a motive for murder stating he'd do "anything" to make his girlfriend (the victim) abort their baby. His "Jim Beam Can" that was left on her verge as he came back to kill her, a suspected murder weapon knife found in the paddock between their houses carrying her blood, a cigarette packet with her blood at his house and the burnt clothing he had lied about created an undeniable story that when met with little to no pushback by the defence, forced the jury to convict him. However, when all of this evidence was undermined in the appeals process by the defence, the prosecution still believed they had a winnable case to reconvict him. But upon assessing the new evidence that the knife, cigarette packet and "Jim Bean Can" had to be planted, they unanimously acquitted him. Furthermore, The Judge, who was put under heavy pressure by the prosecution, who had an unquestionable story, still upheld IA by allowing this evidence to be scrutinised and heard by the jury during Austic's appeal, proving his innocence. Therefore, it is evident that the Adversarial System upholds the principles of IA to a high extent, with strong principles of remaining unbiased and fairly making judgements, supported by the case of Scott Austic. - The Adversarial System upholds the principle of Hearing Both Sides (HBS) to a moderate extent, the strengths highlighted in Austic's case and the weaknesses in Kathleen Folbigg's. HBS is right for both parties to have their best arguments considered by a judge/jury. A key theoretical strength of HBS is that everyone, regardless of their financial situation, has access to legal counsel. In the case of Scott Austic, particularly his retrial, he was well represented by David Edwards (and Clint Hampson) leading to his eventual acquittal. The appeal process allowed Austic to present new evidence, not properly considered during the original trial. His legal team found many flaws in the investigation, including the mishandling and possible planting of evidence. They ensured that his side of the story was fully considered, a significant difference from his initial trial where his rights were limited by his refusal of legal counsel, grounding the efficacy of proper legal aid in providing justice and the benefits that come with universal access to legal counsel. However, legal teams with this resourcefulness are hard to come by, leaving many people disadvantaged by a lack of legal resources. In the case of Kathleen Folbigg even though she had legal counsel, it was clear that her legal defence was underfunded and lacked the resources to fully challenge the prosecution's case, undermining HBS. This included the inability to investigate alternative explanations for the deaths of her children during her initial trial. Her appeal was weighted highly on expensive genetic evidence that she couldn't get access to for a long time. Even after the case's validity had been questioned, a lack of resources meant it took the police 3 years to review a petition for her inquiry. Later when genetic testing had proven there was another reason for the children's deaths it wasn't for another year that the police had reviewed this second inquiry. Overall, even though she had legal counsel who compiled evidence for her, a lack of resources ultimately extended her conviction's timeline and delayed her acquittal. For these reasons, even though there are strengths in IA that allow both parties to best present their case, there are monetary and resource limitations highlighted in the Kathleen Folbigg case that can undermine this. - The Adversarial System best upholds natural justice by reducing bias, incentivising parties to obtain their best evidence and providing legal aid. Even during the rare mistrials of Andrew Mallard, Scott Austic and Kathleen Folbigg, this system ultimately provided them with their freedom, demonstrating natural justice. However, these cases highlight the system's unequal access to resources and excessive competition, undermining its final justice and proving it upholds these principles to a moderate extent. Overall, while these flaws may seem daunting, through measures of higher accountability and impartial detailing of evidence through technology as well as increased legal aid funding, we can ensure a future in which everyone receives fair and equal treatment under the law, upholding the principles of natural justice through the adversarial system.