The Adversary System:
The adversary system is the method of trial used within Australia's legal system. Under this system, two sides (opposing parties or adversaries) come before an independent and impartial court in an attempt to prove their allegations. This process requires parties to prepare their own case and submit appropriate evidence to a certain standard to substantiate their claim. There are five features within the adversary system.
The role of the judge:
The role of the judge is an important feature within the adversary system. Here, the judge acts an umpire and must be independent and impartial when presiding over a trial. In court, the judge ensures that both parties meet the strict rules of evidence and procedure of the court. They may do this by determining whether evidence is deemed admissible or inadmissible. The judge also ensures that both parties receive equal opportunity to present their case and decides on questions of facts when there is no jury present.
The judge also oversees the selection and empanelling process of the jury and is responsible for instructing the jury on the evidence presented and the issues regarding the application of law. When there is no jury, such as in the magistrates court, the judge is given responsibility for determining a verdict and deciding on sanctions (punishment) when an accused is found guilty.
The judge's role within the adversary system is a passive one. Despite their level of legal knowledge and expertise, the judge cannot assist and unfairly favour one party over another. Rather, their image within the adversary system is one of an impartial referee presiding over a case before them.
The role of the parties:
The role of the parties is another feature within the adversary system. Under this method of trial, it is assumed that parties will have complete control regarding the preparation and presentation of their case. Within the criminal law division, the party responsible for initiating the case is the prosecutor. Here the prosecutor must present arguments and evidence to a Magistrate or jury to support their claim. The accused has the opportunity to plead guilty or not guilty and therefore present their version of the facts in court.
In a civil dispute, the plaintiff as the infringed party will initiate the case. They can decide which court will listen to the dispute and whether or not a jury is required. For both criminal and civil offences, parties decide which arguments they wish to present at court, the relevant points of law to be considered, which witnesses to call and the mode of trial. As the role of the judge is a passive one, parties are given active control of their case under this system.
The role of legal representation:
Under the adversary system, the requirement for legal representation is high crucial and considered necessary. As the preparation and presentation of the case rests on the parties, it is essential to employ legal representation or an individual with expert knowledge on how to meet the strict rules of evidence and procedure in court, how to cross examine witnesses or the best methods to outline the case in court that will appear favourably for their client. Since the judge, despite having a highly sophisticated level of legal knowledge must be passive and cannot offer assistance to parties, legal representation is considered fundamental within the adversary system.
Here, parties may wish to represent themselves however this may be disadvantageous if they have no previous legal knowledge or it seems that the party that can afford better legal representation will have a better chance of the court finding the 'truth' in their favour.
Burden and Standard of Proof:
Another feature of the adversary system is the burden and standard of proof. Here the burden refers to the responsibility of parties to prove their case in court. As individuals are deemed 'innocent until proven guilty', under our legal system, it is up to the accuser to demonstrate the guilt of the accused in court. For criminal offences, this burden rests on the prosecutor to establish the guilt of the accused. In civil offences it is the plaintiff that must outline how the defendant has cause them an infringement.
The standard of proof refers to the level of proof that must be established in court. For criminal offences, the prosecutor, on behalf of the state must demonstrate to a Magistrate or twelve jury members that the accused is guilty 'beyond a reasonable doubt'. The standard of this level of proof is requires is based on what a 'reasonable' person would believe, it is not necessary to establish absolute or without doubt standards. In civil matters, the standard that must be met is that the facts are established on the balance of probabilities; or that it is more likely in favour of one party as oppose to another.
Strict rules of evidence and procedure:
Another feature that exists within the adversary system is the rules of evidence and procedure. Here, these rules exists to ensure that both parties are held to the same standard and that they are treated equally and fairly. Some rules of court procedure can include the process for questioning witnesses, cross examination and summarising their case. Rules of court procedure also include the notion of a continuously hearing, that is, once a trial starts, it needs proceed in a continuous manner.
On the other hand, rules regarding evidence include whether evidence can be considered admissible or inadmissible. Admissible evidence are those deemed relevant to the case at hand in establishing proof of a particular fact. Inadmissible evidence are those that may include privileged information, unprofessional testimony, prior convictions or those that are not legally obtained. Rules exists here to ensure that what the jury is presented with is only information that will assist them to determine the outcome on the case at hand, not prejudice them against the accused in anyway.
The existence of rules of evidence and procedure ensure that each party is treated equally and consistently when attempting to present their side within the adversary system.
The adversary system is the method of trial used within Australia's legal system. Under this system, two sides (opposing parties or adversaries) come before an independent and impartial court in an attempt to prove their allegations. This process requires parties to prepare their own case and submit appropriate evidence to a certain standard to substantiate their claim. There are five features within the adversary system.
The role of the judge:
The role of the judge is an important feature within the adversary system. Here, the judge acts an umpire and must be independent and impartial when presiding over a trial. In court, the judge ensures that both parties meet the strict rules of evidence and procedure of the court. They may do this by determining whether evidence is deemed admissible or inadmissible. The judge also ensures that both parties receive equal opportunity to present their case and decides on questions of facts when there is no jury present.
The judge also oversees the selection and empanelling process of the jury and is responsible for instructing the jury on the evidence presented and the issues regarding the application of law. When there is no jury, such as in the magistrates court, the judge is given responsibility for determining a verdict and deciding on sanctions (punishment) when an accused is found guilty.
The judge's role within the adversary system is a passive one. Despite their level of legal knowledge and expertise, the judge cannot assist and unfairly favour one party over another. Rather, their image within the adversary system is one of an impartial referee presiding over a case before them.
The role of the parties:
The role of the parties is another feature within the adversary system. Under this method of trial, it is assumed that parties will have complete control regarding the preparation and presentation of their case. Within the criminal law division, the party responsible for initiating the case is the prosecutor. Here the prosecutor must present arguments and evidence to a Magistrate or jury to support their claim. The accused has the opportunity to plead guilty or not guilty and therefore present their version of the facts in court.
In a civil dispute, the plaintiff as the infringed party will initiate the case. They can decide which court will listen to the dispute and whether or not a jury is required. For both criminal and civil offences, parties decide which arguments they wish to present at court, the relevant points of law to be considered, which witnesses to call and the mode of trial. As the role of the judge is a passive one, parties are given active control of their case under this system.
The role of legal representation:
Under the adversary system, the requirement for legal representation is high crucial and considered necessary. As the preparation and presentation of the case rests on the parties, it is essential to employ legal representation or an individual with expert knowledge on how to meet the strict rules of evidence and procedure in court, how to cross examine witnesses or the best methods to outline the case in court that will appear favourably for their client. Since the judge, despite having a highly sophisticated level of legal knowledge must be passive and cannot offer assistance to parties, legal representation is considered fundamental within the adversary system.
Here, parties may wish to represent themselves however this may be disadvantageous if they have no previous legal knowledge or it seems that the party that can afford better legal representation will have a better chance of the court finding the 'truth' in their favour.
Burden and Standard of Proof:
Another feature of the adversary system is the burden and standard of proof. Here the burden refers to the responsibility of parties to prove their case in court. As individuals are deemed 'innocent until proven guilty', under our legal system, it is up to the accuser to demonstrate the guilt of the accused in court. For criminal offences, this burden rests on the prosecutor to establish the guilt of the accused. In civil offences it is the plaintiff that must outline how the defendant has cause them an infringement.
The standard of proof refers to the level of proof that must be established in court. For criminal offences, the prosecutor, on behalf of the state must demonstrate to a Magistrate or twelve jury members that the accused is guilty 'beyond a reasonable doubt'. The standard of this level of proof is requires is based on what a 'reasonable' person would believe, it is not necessary to establish absolute or without doubt standards. In civil matters, the standard that must be met is that the facts are established on the balance of probabilities; or that it is more likely in favour of one party as oppose to another.
Strict rules of evidence and procedure:
Another feature that exists within the adversary system is the rules of evidence and procedure. Here, these rules exists to ensure that both parties are held to the same standard and that they are treated equally and fairly. Some rules of court procedure can include the process for questioning witnesses, cross examination and summarising their case. Rules of court procedure also include the notion of a continuously hearing, that is, once a trial starts, it needs proceed in a continuous manner.
On the other hand, rules regarding evidence include whether evidence can be considered admissible or inadmissible. Admissible evidence are those deemed relevant to the case at hand in establishing proof of a particular fact. Inadmissible evidence are those that may include privileged information, unprofessional testimony, prior convictions or those that are not legally obtained. Rules exists here to ensure that what the jury is presented with is only information that will assist them to determine the outcome on the case at hand, not prejudice them against the accused in anyway.
The existence of rules of evidence and procedure ensure that each party is treated equally and consistently when attempting to present their side within the adversary system.