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The Adversary Legal System In Australia

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As the name suggests, the adversary system in Australia refers to a method of trial, which involves contestants or adversaries, that is, it is an adversarial approach in attempting to resolve legal issues between two opposing sides. There are five features of the adversary system in Australia; contest; party control; strict rules of evidence and procedures; role of the judge or magistrate and single event trials. The strengths and weaknesses of the adversary system, which has evolved through out history are varied, and as a result the question of whether this system provides justice is often challenged.

Unlike the inquisitorial system used in European countries, in the adversary system, the judges are not expected to conduct an investigation into the facts of the case to reach the truth. Instead adversary judges rely on the case presented by the two opposing sides. This contest between the two parties is based on the belief that a contest is more likely to bring out the best in the parties and make them strive to win. If both sides are trying their hardest the truth is most likely to be uncovered.

The concept of party control is an important feature of the adversary system. Because magistrates or judges have a very passive role in adversary trials, the case is totally left in the hands of the two parties. Both parties have almost complete control over the decisions about how the case will be run, such as ?tactics? they will use to win the case, as long as the rules of evidence and procedure are followed. This is a strength of the adversary system because it allows the parties to feel that they are in control of the situation and responsible for the outcome. It also satisfies the competitive, or combative spirit. Someone who can fight their own battle would feel more satisfied with the result of the case. Party control is very important in criminal cases in that the accused does not depend on the state for their defence. In civil cases the two parties are able to settle their battle in court with little interference with the state.

However, it can be said that because the adversary system is heavily based on two sides locked in battle, particularly in civil cases, it can lead to further animosity between the parties, instead of settling their differences in a friendly manner. As well as the social aspect, in civil cases, delays can be caused by the plaintiff to see if the defendant will decide to drop the case because of the cost of the proceedings.

One of the main features of the adversary system of trial is the heavy reliance on very strict rules of evidence and procedures, which is presented to the ultimate decision makers of the case. These strict rules were developed to help and protect the jurors as they came to a decision; however, these strict rules apply even if there is no jury in a trial. Rules of evidence such as direct, hearsay, expert, circumstantial, oral, character evidence and procedure are aimed at ensuring fair and equal treatment. The use of expert and oral evidence can, however, have adverse effects. Because the prosecution in criminal cases usually has far more access to greater facilities for the collection of evidence, this can pose distinct disadvantages on the accused.

The prosecution has the opportunity to investigate the crime when it was committed, but if the accused was charged years later, the evidence can be old and accurate results from testing can be hard to achieve. Another major disadvantage of expert evidence, such as forensic DNA evidence, is it can be very influential on the jury, which can be a problem if mistakes have been made in the testing, there for the evidence is misleading. Oral evidence allows the judge, magistrate or jury able to assess the sincerity of the witness, rather than reading written evidence. The cross examination can also show up any incorrect or misleading evidence. However, lawyers conducting cross examinations can be intimidating to inexperienced witnesses, which can cause mistakes to be made and lead the jury, judge or magistrate to doubt the evidence, thus having effect on the outcome of the case.

Another feature of the adversary system is the role of the judge or magistrate. Their role in adversary trials is of a passive umpire and to keep the contest between the parties fair. The judge does not take an active investigation into the case like the inquisitorial system, but instead is reliant on the information submitted by both parties. He or she then decides which of the parties presented a better case after hearing all the evidence and legal submissions.

This is a very important feature because there is an impartial adjudicator to arbitrate and conciliate between the parties to maintain fairness between the two opposing sides. Because judges, magistrates and juries make a decision based on the facts of the case they have before them, there are no preconceived ideas about the either of the parties, which results in an unbiased decision. However, the judge or magistrate is only responsible for ensuring that the case is run fairly, they do not involve themselves in the running of it, and cannot help one party if their representation is not doing a good job. It can also argued that judges and magistrates are over cautious in limiting issues and arguments being raised by the parties in the interests of being fair to both sides. Their role in the adversary system is to be an impartial adjudicator, not to help discover the truth or help parties settle their dispute.

The last key feature of the adversary trial is that, once begun, the trial will be continuous, even though the whole case can take days, weeks or months. Pre-trial or pre-hearing procedures will inform the court of matters coming before them, but the judge or magistrate does not become involved in the case until the trial or hearing begins. The trail or hearing then continues until all the evidence and witnesses have been heard, a decision is then made and the sanction or remedy is declared. This is a key element of the adversary system because it provides a forum for the ?battle? to take place. As it happens in one continuous event, all the energies of both parties are concentrated on winning the case during that event. Even though this does allow the case to be heard without outside influences, it can have adverse consequences as some evidence is brought out after the trial is over. Another down side of this feature is the length of some major trials; it is difficult for the judge or jury members to remember all the evidence brought during the trial in order to reach a fair decision.

It can be concluded that all five points raised in the adversary system have strengths and weaknesses. For example, the role of the decision maker in the adversarial system and strict rules of evidence and procedure can be said to be too strict for all the truth to be uncovered and confusing for the jury. On the other hand, the alternative, as they have in the inquisitorial system is unfeasible. But to say the adversarial system provides justice continues to evolve through trial and debate

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