AOS 2
Court processes and procedures, and engaging in
justice

Dispute resolution through courts operating under the
adversary system of trial is characterised by formal
processes and procedures that must be adhered to by all
parties involved with the case. Students investigate the
major features of the adversary system of trial, and
aided by a comparison with the inquisitorial system of
trial, evaluate the adversarial approach to dispute
resolution. They also examine criminal and civil pre-trial
and post-trial procedures. Students investigate the role
of criminal and civil juries, consider their strengths and
weaknesses, and suggest reforms and alternatives
applicable to the current jury system.

Throughout their investigation of court processes and
procedures, students assess the extent to which these
processes contribute to an effective legal system.
Area of Study 2

On completion of this unit the student should
be able to explain the processes and
procedures for the resolution of criminal
cases and civil disputes, and evaluate their
operation and application, and evaluate the
effectiveness of the legal system.

To achieve this outcome the student will draw
on key knowledge and key skills outlined in
Area of Study 2.
Outcome 2
• the elements of an effective legal system: entitlement to a fair and unbiased hearing,
effective access to the legal system and timely resolution of disputes
• major features of the adversary system of trial, including the role of the parties, the
role of the judge, the need for the rules of evidence and procedure, standard and
burden of proof and the need for legal representation
• strengths and weaknesses of the adversary system of trial
• major features of the inquisitorial system of trial
• possible reforms to the adversary system of trial
• criminal pre-trial procedures and their purposes, including bail and remand and
committal hearings
• general purposes of criminal sanctions
• an overview of three types of sanctions and their specific purpose
• Supreme Court civil pre-trial procedures, including pleadings, discovery and directions
hearings, and the purposes of these procedures
• the purpose of civil remedies
• types of civil remedies, including damages and injunctions
• the role of juries, and factors that influence their composition
• strengths and weaknesses of the jury system
• reforms and alternatives to the jury system
• problems and difficulties faced by individuals in using the legal system
• recent changes and recommendations for change in the legal system designed to
enhance its effective operation.
Key knowledge
• define key legal terminology and use it appropriately
• discuss, interpret and analyse legal information
• apply legal principles to relevant cases and issues
• critically evaluate the adversary system of trial
• compare the operation and features of the adversary system with
the inquisitorial system
• describe the pre-trial procedures for the resolution of criminal
cases and civil disputes, and compare their relative purposes
• discuss the ability of criminal sanctions and civil remedies to
achieve their purposes
• critically evaluate the effectiveness of juries
• suggest and discuss reforms and alternatives to the adversary
system and the jury system
• evaluate the extent to which court processes and procedures
contribute to an effective legal system.
Key skills
The word adversary means opponent or
competitor
 The adversary system of trial is a
contest, where the parties fight to win.
 The adversary system is the system of
trial used by most courts in Australia.

The adversary system of trial
Adversary system of trial is a
contest between the parties
Two parties
Putting
opposing
arguments to
an independent
umpire
Who will decide
which side is in
the right and
which side is in
the wrong
The adversary system involves:
Key words: ACTIVE and CONTROL
 Parties have control over how they
present their case
 They decide when to commence
proceedings, what evidence to bring, what
law to argue, what witnesses to call, and
what questions to ask those witnesses

Feature No. 1:
The role of the parties
Parties decide what witnesses to
call
Strengths of the active role of
the parties
Weaknesses of the active role
of the parties
Parties are more likely to feel
satisfied with the result if they
have control over the case and
the way it is presented
It is stressful and difficult for
parties because the responsibility
is on them to seek evidence, laws
and witnesses
The people who know the
situation best are the ones in
charge of the proceedings
It gives an unfair advantage to
repeat offenders (because they
know the system) or wealthier
parties (because they have the
money and resources to hire
good lawyers and experts and
can afford to appeal)
Strengths and weaknesses of this
feature of the adversary system
Key words: PASSIVE, INDEPENDENT,
UNBIASED
 The judge presides over the court,
ensuring the rules of evidence and
procedure are followed.
 If a jury is used, the judge may explain
the law to them.
 The judge listens to the arguments
presented by the parties and makes an
unbiased decision.

Feature No. 2:
The role of the judge
A judge is meant to be fair and
unbiased
Strengths of having a passive
judge
Weaknesses of having a
passive judge
The judge’s impartiality and lack
The judge is unable to assist
of bias protect the integrity of the unrepresented, inexperienced or
court and the legal system
otherwise disadvantaged parties
The judge can keep an objective
view by not interfering in the
contest, therefore they can make
a fair decision
The judge’s experience and
expertise is wasted because they
cannot contribute to the case.
Strengths and weaknesses of this
feature
Keywords: STRICT, COMPLEX
 Rules of evidence govern what evidence is
admissible and inadmissible.
 Rules of procedure govern how the trial is
run.

Feature No.3:
The rules of evidence & procedure
Strengths of rules of evidence
& procedure
Weaknesses of rules of
evidence & procedure
Strict rules of evidence make
sure that all evidence presented
in court is relevant, reliable and
legally obtained
Some important evidence can be
excluded on a technicality
Strict rules of procedure ensure a Strict and complex rules make it
smooth trial and put parties on
difficult and stressful for parties
an equal footing
to present their case – it can also
add to the amount of time and
expense of the case
Strengths and weaknesses of this
feature
Keywords: PERSON BRINGING THE
ACTION, HIGH LEVEL
 The burden of proof is on the plaintiff or
the prosecution. They bring the action and
so have the responsibility to prove it.
 The standard of proof is the amount of
proof required: on the balance of
probabilities (civil) or beyond reasonable
doubt (criminal)

Feature No. 4:
The burden & standard of proof
The burden of proof is on the
plaintiff or prosecution
Strengths of the burden &
standard of proof
Weaknesses of the burden &
standard of proof
They ensure unfounded claims do The party that has been wronged
not succeed
has total responsibility to prove
the case
They protect the presumption of
innocence
This adds further stress and cost
for the parties having to provide
the proff
Strengths and weaknesses of this
feature
Keywords: HIGH NEED, NECESSARY
FOR SUCCESS
 Because of the other features of the
adversary system, legal representation is
vital is gaining a proper chance of success

Feature No. 5:
The need for legal representation
Solicitors and barristers are
necessary for success
Strengths of legal
representation
Weaknesses of legal
representation
A confident, experienced and
trained professional can put the
case as efficiently and
persuasively as possible
Good representation is too
expensive for most people to
afford
Lawyers take the pressure off the The cost of barristers can give
parties, which is better for
wealthier parties an unfair
disadvantaged and inexperienced chance of success
parties
Strengths and weaknesses of this
feature
The Inquisitorial System
A method of legal practice in which the
judge endeavors to discover facts while
simultaneously representing the interests
of the state in a trial.
It is the system used in many civil law
countries (as opposed to common law)
such as France and Spain, and some
Australian courts such as the Family Court
and Coroners Court.

Definition of inquisitorial system
A trained
professional
Investigates
both sides of
a matter
And has
access to all
the
information
about it
Features of the inquisitorial
system
So the truth
will be
discovered
Unlike the adversary system, the
inquisitorial system is not a
contest but more like an
investigation




Keywords: INACTIVE, PASSIVE
Parties observe proceedings and can have
input via statements and making requests of
the judges, but they do not control
proceedings or evidence
Strength: The burden is taken off parties, so
it is less stressful and expensive for them
Weakness: Parties may feel at the mercy of
the judges, and therefore less satisfied with
the decision
Comparison with adversary: role
of the parties




Keywords: IN CONTROL, INVESTIGATORY
The judge (or panel of judges) exercises almost
complete control over the case. They collect and
examine evidence, choose which witnesses to
hear from, and decide both the relevant law and
the facts
Strength: The judge’s expertise is used and
parties are not able to hide or manipulate
unfavourable evidence
Weakness: The judge may lose some of their
impartiality, being so involved in the
investigation. Also, the judge does not have to
investigate angles the parties think are important
Comparison with adversary: role
of the judge


Keywords: FLEXIBLE, LOOSE
Rules of evidence are almost non-existent:
hearsay, prior convictions and written evidence
are all allowed. Rules of procedure are not
necessary, as the judge conducts proceedings.

Strength: Parties do not have to navigate
complex and stressful procedures. All relevant
evidence is taken into account.
Weakness: Evidence such as prior convictions
may be unfairly prejudicial to the defendant.
Documentary and hearsay evidence cannot be
tested thoroughly.

Comparison with adversary: rules
of evidence & procedure




Keywords: ABSENT BURDEN, HIGH STANDARD
There is no formal burden of proof, as the judge
investigates both sides of the case simultaneously.
There must still be significant evidence to show that
the defendant was at fault.
Strength: The injured party does not need to
bear the burden of conducting the case.
Unfounded criminal or civil claims should still not
succeed.
Weakness: Because the defence’s case is
examined before fault has been proved, the idea
that the defendant is innocent until proven guilty
is not felt strongly.
Comparison with adversary:
burden and standard of proof




Keywords: SUPPORTIVE ROLE, NOT NECESSARY
Legal representatives support the parties, explain
proceedings to them and can make requests of
the judge. They may also assist the judge with
investigating the case.
Strength: A party’s success does not rely on
their legal representation, so it decreases costs
and doesn’t benefit wealthier parties as much.
Weakness: Parties cannot choose the person
they trust the most to argue for them and give
them the best chance of success.
Comparison with adversary: need
for legal representation
Which one is better? Adversary
system or inquisitorial system?
Criteria for an effective legal
system
Reform
Benefits
Give the judge a more
investigative role by allowing
them to question witnesses and
gather evidence
Unrepresented parties could be
assisted and the judge’s
expertise would be utilised.
It is more likely that all evidence
would be uncovered.
Relax the rules of evidence to
allow documentary evidence and
some currently inadmissible
evidence
Flexible rules would be easier to
navigate and less stressful for
parties. A more complete picture
of events would emerge.
Recent reforms to the adversary
system adopted aspects of the
inquisitorial system