Disputes and systems of trial

Disputes

Disputes are generally referred to as disagreements between two or more people or groups that may end up before a court.

Disputes that go to courts may be classified as criminal or civil disputes.

Criminal disputes refer to crimes (offences  or breaches of the law) against the community or its members. Civil disputes refer to ‘private’ wrongs toward  an individual or group.

If disputes cannot be settled before the court stage a trial may take place where the aim is to determine what really happened.

Less than 5% of all disputes that go to court actually proceed to a trial.

Systems of trial

The adversarial system

This is used for criminal cases in Australia. Some features of this system are that:

  • the court is separate from the police. The judge is like a referee.
  • the two opposing sides (the prosecutor and the defence) put forward their cases. The prosecutor has to prove the case against the accused beyond reasonable doubt.
  • each side may be represented by lawyers and can call witnesses to give evidence to establish facts to help their case. Judges do not generally ask questions of witnesses.
  • the accused person may have the right to be tried by a jury of twelve people from the community. They will decide whether he or she is guilty or not guilty.
  • the trial is heard by a magistrate (in less serious cases) or by a judge and jury, or by judge alone
  • the most serious cases may first go to a magistrate who will determine whether there is enough evidence for the accused to be sent to trial in a higher court
  • in a jury trial it is the jury who decides if the accused is guilty or not guilty. The judge assists the jury by telling them about the law.
  • the process is open to the community.

The inquisitorial system

Many European (and some Asian) countries use a different system of trial that incorporates some of the following features:

  • Judges/magistrates act as investigators and supervise the role of police in the gathering of evidence both for and against the suspect.
  • The public can observe the trial but not the investigation.
  • If the investigating magistrate decides there is a case against the accused, he/she compiles a dossier and refers the accused to a court for trial.
  • The accused is innocent until proven guilty but the case does not have to be proved beyond reasonable doubt.
  • The trial may be heard by a judge and in some countries judges and a jury. The judge calls witnesses and questions them.
  • There are no strict rules of evidence.
  • In some instances trials may adjourn for the gathering of more evidence.

Alternative approaches

Mediation  (generally not used in criminal cases)

Mediation often involves a neutral third person helping both sides to reach an agreement rather than a judge.

(If, for example, four of you were trying to make a decision about which movie to see, you might ask another friend to help you decide. In a school setting, a disagreement with another may result in a student counsellor attempting to settle the dispute. Because they do not take sides they can be viewed as a mediator.)

A restorative approach

Restorative justice refers to an approach used in criminal cases where the offender admits responsibility for their behaviour and:

  • explains their behaviour to the victim
  • apologises for their actions
  • appreciates the real impact of what they have done and the range of people affected
  • makes some promises about future behaviours and recompense to the victim.
​Fact Sheet 2