Due process? Interpreting

the adversarial model and

the sustainability of justice

within the institutions of the

law

1

Review

Governance

•3 arms of govt

•Separation powers

•Courts

Courts•Hierarchy

•Independence

•Judiciary

Judiciary•Impartiality

•Ideology

•Precedent

System•Process

•Justice

•sustainability

2

Learning Outcomes

Systems

identify differences between

inquisitorial and

adversarial legal systems

Steps

explain steps in

adversarial court

proceedings

Principles

critically analyse the principles of

due processes and their

alternatives

Justice

critically analyse the capacity of the courts to

provide access to

justice

3

Due process = procedural

fairness at every stage

4

Contrasting systems

Adversarial Inquisitorial

Role of judge

Role of advocate

Basis of decision

Role of evidence

Truth finding?

Cost

Judicial qualifications

5

Elements: Transparency

6

Elements: Limitation periods

7

Conduct of the trial

CivilCriminal

8

Civil trial process

P outlines case

Examination in chief

Cross-examination

Re-examination

Summing upStandard of proof: BoP

Decision Remedies

9

Civil vs criminal trial process

Civil Criminal

Straight to hearing – may require

mediation first

Committal hearing before trial

Plaintiff Prosecution

Calls witnesses Innocent til proven guilty: does not

need to call own witnesses

Jury trial rare Indictable offences: jury trial

Prove on balance of probabilities Prove beyond reasonable doubt

Judge makes finding Further submissions re sentencing

10

Due process…

Affects justice for

the individual

Supports a justice system

11

Evidence: some principles

Relevant

Ordinary/expert

Strength, reliability tested

Right to silence

Public interest?

12

Is torture a valid way to

extract evidence?

13

Discretion in sentencing

14http://www.creativespirits.info/aboriginalculture/law/mandatory-sentencing

Where

does it

come

from?

What

does it

aim to

achieve?

What is

due

process?

15

Procedural justice

JusticeDue

process

16

Universal Declaration Human

Rights

Article 10

everyone is entitled to a fair and public

hearing by an independent and

impartial tribunal, in the determination of

his rights and of any criminal charge

against him

17

Common law due process

Right to know case

details

Right to be heard

Separate complaints

heard separately

Decision based on testable

evidence

18

When

are

juries

used?

What is the

role of the

jury?

What is

the origin

of the jury

system?

19

Juries’ origin

20

Juries’ purpose

21

A critique

Juries

22

Rubin Carter, 1967 (US)

23

All of Rubin's cards were marked in

advance

The trial was a pig-circus, he never

had a chance.

The judge made Rubin's witnesses

drunkards from the slums

To the white folks who watched he

was a revolutionary bum

And to the black folks he was just a

crazy nigger.

No one doubted that he pulled the

trigger.

And though they could not produce

the gun,

The D.A. said he was the one who

did the deed

And the all-white jury agreed.

Bob Dylan ‘Hurricane’ (1975)

Image:

http://www.wsj.com/articles/SB10001424052702304

279904579513690020187008

24

Jury Act 1995 (Qld)

s59 Verdict in criminal cases for particular offences must be unanimous

(1) This section applies to the following criminal trials on indictment—

(a) a trial for any of the following offences— (i) murder; (ii) an offence against the

Criminal Code, section 54A(1) if, because of the circumstances of the offence, the

offender is liable to imprisonment for life, which can not be mitigated or varied under

the Criminal Code or any other law; (iii) an offence against a law of the

Commonwealth;

(b) a trial before a jury consisting of only 10 jurors when it gives its verdict.

(2) For subsection (1)(b), it does not matter that at any time before its

verdict was given the jury consisted of more than 10 jurors.

(3) The verdict of the jury must be unanimous.

(4) However, if on the trial of an offence mentioned in subsection

(1)(a)(i) or (ii)—

(a)the jury is unable to reach a unanimous verdict; and

(b)the defendant is liable to be convicted of another offence not

mentioned in subsection (1)(a)(i) or (ii);

in relation to the conviction for the other offence, section 59A applies as

if the defendant were originally charged with the other offence.

Alternatives?

Panel of judges

Judicial advisers

Judge alone

25

Access to justice: complexity

26

Access to justice: layers of

cost

27

Party bears cost:

Time, lost wages

Legal representation

Court fees

Other party’s costs

The law in its

majestic equality

forbids the rich as

well as the poor to

sleep under the

bridges, to beg in

the streets, and to

steal bread.

Anatole France28

Image from: http://en.wikipedia.org/wiki/Mahboba%27s_Promise

29

30

Experiences of culturally &

linguistically diverse people (with permission)

Sexual

violence

since 15

Assault in

home

Violence by

partner

Not reporting

assault to

police

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

Experiences of violence (2014, Parliamentary

Library)

Women

Men

31Domestic violence hotline: 1800 811 811 http://www.dvconnect.org/education-resources/public-

awareness-campaigns/

Hindmarsh Island Bridge Case

Q. Which is what you are talking about, is a question of protecting the island from a lot of people coming to the island and ruining it. That’s what it is isn’t it?A. You interpret it as environment, I don’t. We have a different interpretation it seems. We cannot as Aboriginal people, separate environment and culture. They go hand in hand.Q. Why are they different from —A. Because — no, I can’t talk to you about that. It is plain to see you would never understand about that anyway.

32

Justice?

33

Access to justice

34

Access to justice?

35

Access to

justiceAdvocacy

casework

Advice Community education

Law reform

36

Alternative dispute resolution

37

Resolving legal disputes

CourtsAdversarial

systemJudicial

reasoning

Conduct of trial

Rules and principles

Due process

Access to justice

Non-judicial resolution

38