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Adversary System

The adversary system of trial is used in Australia in which two opposing sides try to win the case. Set rules of evidence and procedure must be followed and the judge is an impartial arbitrator


Role of the adversary system of trial

The role of the adversary system is to provide a procedure for both parties to present and resolve their case, in a fair matter. The adversary system operates in both civil and criminal cases.


Features of the Adversary System

- The role of the parties
- The role of the judge
- Standard and burden of proof
- The need for rules of evidence and procedure
- The need for legal representation


The role of the parties

In the adversary system of trial the parties controls their own case and have complete control over decisions about how the case will run as long as rules of evidence and procedure are followed.
The parties are responsible for the following:
- Instigating the proceedings
- Investigating the facts
- Deciding which facts should be brought before the court
- Investigating the law
- deciding whether to have a jury in a civil case
- Choosing to have legal representation


The role of the Judge

Ensuring that the Core processes and procedures are carried out and strict rules of evidence and procedure is followed and each of the parties are treated fairly and equally
The judge or magistrate are responsible for:
- Ensuring rules of evidence and procedure are followed
- Deciding questions of law
- Clarifying issues
- Directing the jury if there is one
- Deciding questions of fact where there is no jury
- Deciding the sanction or remedy


Burden of proof

Relates to the question of which party has to prove the facts of the case. It lies with the person who is bringing the case. In a criminal case it lies with the prosecution. In a civil case it lies with the plaintiff. This means the person bringing the case has to prove that there view of the facts is correct and not the other party's view.


Standard of proof

Refers to the strength of evidence needed to prove the case. In a criminal case the prosecution must prove the case is beyond reasonable doubt. In a civil case the plaintiff must prove the case on the balance of probabilities.


The need for rules of evidence and procedure

To ensure that both parties are treated fairly and equally.


Rule of Procedure

Provide the framework in which court cases can take place and through which the court will try to bring about a resolution to the case. The hearing/ trial procedure establishes the steps for bringing out the evidence.


Rules of evidence

Each court hearing or trial is governed by rule of evidence that facilitate the fact-finding task of the courts and aim to ensure fair and equal treatment. Evidence is concerned with the proving of facts.
Evidence can be:
- Oral evidence
- a sworn statement ( affidavit)
- In a form of an Object
- Audio or audiovisual material
- circumstantial evidence


The need for Legal Representation

Legal representation are experts who are familiar with the strict rules of evidence and procedure that are essential elements of the adversary system. these experts help to ensure that the parties are able to present their best possible case and to assist in achieving a just outcome


Strength of the adversary system

-Party control allows parties to most likely feel more satisfied with the result if they have been able to control the conduct of their case
- The judge operates as a impartial umpire,judges make their decisions on the facts before them and have no preconceived ideas about the parties
- strict rules of evidence and procedure


Weaknesses of the adversary system

- Party control relies on the parties bringing out all the evidence that is favourable in their case. Therefore there may be vital evidence missed and the court may reach a unfair decision.
- delays
- High cost of proceedings


Major features of the Inquisitorial system

- the role of the parties
- the role of the judge
- burden and standard of proof
- rules of evidence and procedure
- the role of legal representation


Inquisitorial system: The role of the Parties

The judge has control over the case therefore the parties have greatly reduced role. They are required to respond to the directions of the court.


Inquisitorial system: Role of the Judge

Judge takes a more active role in the case. The judges role is:
- Investigating cases
- Defining the issues to be resolved
- Gathering evidence
The judge conducts the investigations an supervises the work of the police, finds and questions witnesses and suspects, orders searches and finds evidence.


Inquisitorial System: Burden and standard of Proof

No formal burden or standard of prod as the judge is the person responsible for bringing evidence and finding out the truth.


Inquisitorial System: Rules of evidence and Procedure

Less reliant on strict rules of evidence and procedure.


Inquisitorial system: Role of Legal representation

Due to the active role of the judge, the role of legal representation is lesser. They assist the judge in finding the truth


Role of the jury

The role of the jury is to listen to the evidence given by both parties, than make a decision on the facts of the case.


Composition of juries

- Selection of jurors
- liability for Jury Service
- A summons for Jury duty
- Jury Pool


Strengths of the jury System

- Decisions made by a cross section of the people
- Involves the general public
- Used over many years and has stood the test of time


Weaknesses of the jury system

- May have difficulty understanding complicated evidence
- Unfamiliar with legal procedure
- May have difficulty reaching a decision
- Unpredictable decisions


Reforms to the jury

- Require Juries to give reasons for there decision
- make juries more representative
- further simplify jury directions
- have a specialist foreperson
- give instructions before the trial
- introduce 'not proven' verdicts
- Juries to participate in sentencing
- More technical assistance
- reduce the size of the jury and


Alternatives to the jury system

- Judge alone
- professional Jurors
- Specialist Jurors


Jury in civil case

-6 member jury on request in county and supreme
-Majority verdict decision of 5/6 based on the balance of probabilities
-Liability - Plaintiff/defendant
-Awards the damages


Jury in a criminal case

-12 members of jury
-Only county and supreme court
-Reach an unanimous decision, although after 6 hours of deliberation an unanimous decision cannot be reached the court will accept a majority verdict of 11/12 in all cases other than murder, treason, commonwealth offences and drug trafficking of commercial quantities
-Beyond reasonable doubt
-Guilty/Not guilty
-No decision made = hung jury


Role of the foreperson

A foreperson is a member of a jury who has been elected by the other members of that jury as a spokesperson for the jury



An independent group of people summoned to a court and empaneled to decide on the evidence in a case and reach a verdict


Hung jury

A Jury that cannot reach a decision


Alternatives to a jury system: judge alone

A judge would be able to make a decision bas d on the law with a through understanding of the law.
A judge would also understand legal processes and procedures
A panel of 3 judges could discuss the salient issues and spread the decision between them


Alternatives to a jury system: professional jurors

They would have a better understanding of court procedure and legal processes.
They could develop expertise in certain kinds of cases


Alternatives to a jury system: Specialist Jurors

A specialist jury could be made up of people who are experts in that field that is related to the case.
In the jury system a disadvantage is that the jury may not understand complicated evidence put before them whereas is the jury were specialised this wouldn't happen


Composition of jurors: Selection of Jurors

Random selection from electoral rolls.
If a person is a registered voter they may be called for jury duty. The juries commissioner notifies the electoral commission of the number of estimated to be required for jury service in a particular district.

A questionnaire is required


Composition of jurors: liability for Jury Service

Every person aged 18+ who is enrolled as an elector is qualified and liable as a juror.
Except if:
- is disqualified from serving as a juror
- is ineligible to serve as a juror
- anyone who the hurries commissioner has 'excused for good reason' from serving as a juror


Composition of jury: A summons for Jury duty

The juries commissioner will summon the people who are liable,e for jury service when the court needs them.
The summons should be received 10 days prior to the date the prospective juror is expected to appear in court.
- if a person is deemed liable for jury service, it is an offence not to attend when called and is punishable by a fine of 30 penalty units or imprisonment for 3 months


Composition of jurors: Jury Pool

The juries commission will have a pool of jurors for the supreme and county court from which jurors will be drawn from at Any time.
Jurors who have received a summons and attend jury duty will become part of the jury pool for 1 or 2 days. In the jury pool room, the pool supervisors will determine jurors identify and inquire as their availability for particular lengths of trials


For cause challenge

Challenge with a reason e.g accused is known to the juror (unlimited in number)


Peremptory challenge

Without a reason (based on an assumption, that the juror would not be favourable to their clients/challenger. Based on appearances, age, occupation, gender
-Accused is allowed 6 peremptory challenged
Prosecution can stand aside 6 jurors


Reforms to the jury system: - Require Juries to give reasons for there decision

If the jury was required to give reasons for its decision , the accused in a criminal case would know why they were found guilty and the parties in a civil case would know why the jury had decided the way they did.

The parties would also know whether attention had been given to points of law.


Reforms of the jury system: - have a specialised foreperson

Jury's are unfamiliar with the legal system and court procedure.
A specialist foreperson could be employed and inform the jury on the relevant law and court procedure, which could assist them in reaching their decision.


Reforms to the jury system: further simplify jury directions

There is a need for further improvements to law governing the lengthy and complex directions that judges are often required to give to jurors in criminal cases, a bill was proposed however was not passed.
This bill outlined what judges were required to give clear instructions on to jurors


Changes to the jury system

- extra jurors
- Majority verdicts
- Making the jury more representative


Changes to the jury system: Extra Jurors

Civil juries in supreme and county court are allowed two extra jurors in case someone becomes ill or needs to be excused for a other reason during the trial.
Criminal juries are allowed 3 extra jurors, ensures the accused will have their case heard by the full number of jurors and prevents mistrials that could occur if the number of jurors falls under 10 in a criminal trial


Change to the jury system: Majority Verdicts

Majority verdicts have been introduced in criminal cases except the most serious, if a unanimous verdict cannot be reached in after 6 hours in a criminal trial than a majority verdict will be excepted as a verdict of all jury.


Changes to the jury system: Making the jury more representative

Decrease in the amount of peremptory challenges
Removed some of the 'right to be excused' from jury service if you lived a distance of over 50 kms from a court to 60kms


Jury: Disqualified

Something they did in the past that makes them unsuitable
eg. someone convicted of an indictable offence, served a term of imprisonment of more than 3 years
e.g someone who is bankrupt = they are all seen as unreliable or may be biased towards the accused


Jury: Ineligible

-May be ineligible because of their occupation or their inability to comprehend the tasks a juror.
People who are employed in a law enforcement or the provision of legal services in criminal cases are ineligible for jury service because their opinion might cart too much weight.

-People unable to comprehend the task or carry out the duties of being on a jury are ineligible because they would not make an appropriate decision on the facts before them
e.g cannot read or understand English or are deaf or intellectually disabled



The Jurys questionnaire determines the eligibility of prospective jurors and why others are not eligible
-Some people ineligible (job/administrative/police/judges)
-Disqualified > done something wrong - convicted of an indictable offence
-Why you can't (financial hardship, full time education, distance 50km away

14 days - Failure = fine of 30 penalty units
$158.57 X 30 = $4663.80



A person may apply to the jurors commissions to be excused from jury service for the whole or any part of the jury service period. The juries commissioner will excuse the person if satisfies that there is a good reason In doing so
e.g Illness/poor health, incapacity, distance to travel, substantial hardship, care of dependance


How many peremptory challenges and challenges for cause are allowed in a civil case?

3 peremptory challenges - Unlimited for cause challenges, names written down and 3 names are crossed off- both parties


How many peremptory challenges and challenges for cause are allowed by the defence and prosecution

6 jurors to stand aside - crown can ask
1 accused has 6 peremptory
2 accused has 5 peremptory each
3 accused has 4+ peremptory each


Majority verdicts are accepted in civil and criminal matters

5/6 civil
11/12 in criminal cases after 6 hours of deliberation except murder, treason, commonwealth offences and commercial quantities of drug trafficking


Reforms for jury system: Make juries more represented

-Such as reducing the number of peremptory challenges and removing the right to be excused as a right
-Distance a person lives from a court before he or she is excused from jury service was changed from 32 kilometres from the courthouse to over 50 kilometres (60 kilometres if the court is outside Melbourne).
-Aimed at increasing the community representation on juries by reducing the categories of occupations that render a person ineligible for jury service e.g police and lawyers. Aims to ensure a cross section of society


strengths of jury system: comprises a cross-section of people

A jury is made up of average men and women who are not selected as people in a position of authority but are, as far as possible, a cross-section of the community. An accused person can therefore feel confident that they are not being oppressed by authority but are being tried by people like themselves from within society.


strengths of jury system: involves the general community

involves the general community – Serving as a juror is seen as part of a citizen’s civic duty. A person who serves on a jury is able to participate in the legal system and see the legal system in operation. This can help members of society improve their knowledge of how the legal system works, allow the jurors to see the plight of others in society and generally help those participating to gain a feeling of confidence in the legal system.
Research by the Australian Institute of Criminology found that empanelled jurors reported significantly higher confidence in the criminal justice system than non-empanelled jurors.


strengths of Jury system: spreads the responsibility

spreads the responsibility – The use of a jury allows the decision-making to be spread over more shoulders, rather than being placed solely in the hands of a judge. For example, if 12 people decide that a person is guilty, this decision is more likely to be correct than a decision made by one person. People are therefore more likely to feel confident in the decision made.


weaknesses of Jury System: difficult task

difficult task – The jury is expected to collate, remember, analyse and interpret the facts of the case and to follow the instructions of the judge, as well as being unbiased and unemotional. This is an extremely difficult task for anyone and especially so for the many people who have had little training in these skills.


Weaknesses of Jury system: complicated evidence

complicated evidence – A juror might experience difficulty in understanding the complicated nature of some evidence and the sheer volume of evidence. The witnesses are questioned by both sides, and the jury has to piece together the whole picture from the answers given. This is made even more difficult by evidence that is hard to understand; for example, medical evidence or evidence relating to fraud. In some commercial fraud trials, large sums of money and numerous witnesses are involved. Often the evidence relates to a series of interrelated transactions that require specialist knowledge to fully understand.


Weaknesses of Jury system: deliberations behind closed doors

deliberations behind closed doors – Juries’ deliberations are carried out behind closed doors without anyone present other than the jury members. Their decision could be unjust if all the evidence is not considered.
Judges and magistrates could be seen as better equipped to decide on the credibility of the witnesses. They have the professional training and experience to take an objective view and perform the necessary fact-finding function that is expected of a jury.


Strengths of Adversary system: Party Control

The parties are able to:
• fight their own battle
• engage legal representation to present
their case in the best possible light
• decide what facts are to be brought before the court.


Strengths of Adversary system: Judge is impartial

The judge is impartial and:
• makes sure the parties are treated fairly
• creates more confidence because he or
she is an independent decision-maker
• is independent of the prosecution in criminal cases or the parties in civil


Strengths of Adversary system: Strict Rules of evidence and procedure

Rules of evidence and procedure make the process fair:
• Oral evidence helps reveal if the witness
is sincere.
• The process of examination-in-chief and
cross-examination allows both parties to present their cases and test the evidence of the other party.
• All parties are treated alike.
• Some types of evidence are not
permitted; this is to protect the parties and in the interests of justice.


Weaknesses of Adversary System: Delays

Delays can result from the parties being in control of their own case. Delays can also be caused by the lack of court personnel and court facilities.
Both sides want to win the case, so a criminal case can be held up for many months while the prosecution is gathering evidence against the accused to try to ensure a conviction. If the prosecution brings the case with insufficient evidence, and the court finds the accused not guilty, that person cannot usually be tried again for that offence.


Weaknesses of Adversary System: Vital evidence may be missed

Party control can also disadvantage the parties in some instances, because it relies on the parties bringing out all the evidence that is favourable to their case. Some vital evidence may be missed and the court may reach an unfair decision.


Weaknesses of Adversary System:
High costs

The high cost of criminal and civil proceedings is primarily caused by the parties being responsible for their own case and having to pay highly for legal representation in order to win the case.
The expense can deter people from seeking to enforce their rights in civil cases, particularly if the claim is small. Quite often the plaintiff may be successful in the case, but have little money remaining after paying their legal costs. The successful party might have costs awarded in their favour, but they do not usually cover all solicitor–client costs. These costs are usually unrecoverable.