1. LEGAL STUDIES 2. Adversary System U4.AOS2

2. Learning Intentions At the end of this topic, we will be able to explain: 4.2.2Major features of the adversary system of trial, including the role of the parties, the role of the judge, the need for the rules of evidence and procedure, standard and burden of proof and the need for legal representation 4.2.3Strengths and weaknesses of the adversary system of trial 4.2.4Major features of the inquisitorial system of trial 4.2.5Possible reforms to the adversary system of trial SD 27

3. Learning Intentions At the end of this topic, we will be able to: 4.2.17Define key legal terminology and use it appropriately 4.2.18Discuss, interpret and analyse legal information and data 4.2.19Apply legal principles to relevant cases and issues 4.2.20Critically evaluate the adversary system of trial 4.2.21Compare the operation and features of the adversary system with the inquisitorial system SD 27

4. Adversary system Role Major Features Strengths and weaknesses Inquisitorial system Comparison of adversary and inquisitorial systems Reform

5. R OLE OF THE ADVERSARY SYSTEM

6. What is the adversary system?  The adversary system is the system of trial 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 umpire.

7. What is the role of the adversary system?  The role of the adversary system is to provide a procedure for the parties to present and resolve their case, in as fair a manner as possible.

8. What is the role of the adversary system?  The adversary system operates in both civil and criminal cases.  In a criminal case:  The state is trying to prove the guilt of the accused; and  The accused is fighting to be found not guilty.  In a civil case  The plaintiff (party bringing the case) is trying to prove that the other party was in the wrong; and  The defendant (person who is defending the case) is trying to show that he or she was not in the wrong.

9. M AJOR FEATURES OF THE ADVERSARY SYSTEM

10. Features of the adversary system  As you are watching this clip from legally blonde, brainstorm which features of the adversary system you recognise using specific elements from the clip.  https://www.youtube.com/watch?v=uvrHS7KdZ64 https://www.youtube.com/watch?v=uvrHS7KdZ64

11. Major features of the adversary system 1. The role of the parties 2. The role of the judge 3. The need for legal representation 4. Rules of evidence and procedure 5. Standard and burden of proof

12. Major features of the adversary system  The adversary system is used in most Australian courts.  The adversary system operates whether a jury is present or not.  For example, the procedure used in the Magistrates’ Court is adversarial, and so is the procedure in the County Court.  A jury is part of the system of trial in some cases, but is NOT a feature of the adversary system.  Student have confused this fact in past years and it is frequently mentioned in the assessor’s reports.

13. 1. Role of the parties  Each party is responsible for and has full control over presenting their case. This is known as ‘party control’.  This means the parties decide which factual and legal issues should be raised and what evidence should be presented to prove the alleged facts.  Through this process, the system assumes that the stronger case will emerge, and that is likely to reveal what happened.

14. 2. Role of the judge  The judge is an independent and impartial arbitrator, who is not involved in the parties’ presentation of the case.  This supports the idea of independence (as the judge takes no sides), fairness (as it means that the parties are being ‘umpired’ and are bound by the same rules) and impartiality (as there is no biased umpire).

15. 2. Role of the judge  The judge’s duty is to:  Empanel the jury  Ensure the trial is conducted in accordance with the rules of evidence and procedure  Decide questions of law  Decide questions of fact when there is no jury  Decide the sanction or remedy.  A judge is not involved in the presentation of evidence or the cross-examination of witnesses.

16. 3. Need for legal representation  The emphasis on the presentation of the case being in the hands of the parties means that there is a need for legal representation.  The complexity of the evidence and procedures make it difficult for a party to have a full opportunity to present their case without legal representation.  Success can be influenced greatly by the skill of the legal team.

17. 4. Rules of evidence and procedure  Both parties are subjected to the same strict rules of evidence and procedure, which establish the guidelines for the presentation of arguments and evidence.

18. 4. Rules of evidence and procedure Rules of evidence  The rules of evidence ensure that the evidence collected by the parties and presented in court is both admissible in that it is relevant, reliable and lawfully obtained. Parties mainly relies mainly on oral evidence, although the use of written evidence is increasing. Character evidence and the past records or convictions are usually not available for consideration by the court. Hearsay, which is evidence where a witness relies upon something said by another person, is inadmissible as it is unreliable.

19. 4. Rules of evidence and procedure Rules of evidence  What type of evidence is usually admissible?  oral evidence given by the witnesses in the form of answers to questions from the barristers given in the form of a sworn statement, called an affidavit  in the form of an object such as the murder weapon, stolen goods, photos, diagrams or tape recordings  audio or audiovisual material  a set of circumstances or facts indicating that a certain event has happened (circumstantial evidence).  When is evidence collected? Criminal: evidence gathered in a committal proceeding in a is collected in depositions before the trial. Civil: collected by both sides during the pleadings and discovery stage, but witnesses’ statements are not collected.

20. 4. Rules of evidence and procedure Rules of Procedure  The rules of procedure provide a uniform framework for the presentation of a case.  For example, procedure rules ensure that witnesses only respond to specific questions.

21. 4. Rules of evidence and procedure Rules of Procedure (GOING BEYOND S.D., but useful for understanding!) CIVIL TRIAL IN SUPREME OR COUNTY COURT Jury empanelled (if requested) Plaintiff’s opening address P presents evidence Each witness undergoes: examination by D cross-examination by P re-examination by D Defence’s opening address D presents evidence Each witness undergoes: examination by P cross-examination by D re-examination by P Defence’s final address Plaintiff’s final address Verdict (judge or optional jury)

22. 4. Rules of evidence and procedure Rules of Procedure (GOING BEYOND S.D., but useful for understanding!) CRIMINAL TRIAL IN SUPREME OR COUNTY COURT (not guilty plea) Jury empanelled Prosecution’s opening address Accused’s reply P presents evidence Each witness undergoes: examination by P cross-examination by A re-examination by P Accused may submit that there is no case to answer A presents evidence Each witness undergoes: examination by A cross-examination by P re-examination by A Prosecution’s closing address Accused’s closing address Judge’s direction to the jury Jury’s verdict

23. 5. Burden and standard of proof  The burden of proof relates to the question of which party has to prove the facts of the case. The burden is on the party making the allegation.  The standard of proof refers to the strength of evidence needed to prove the case.  The party with the burden of proof wins the case if they are able to satisfy the standard of proof. CriminalCivil Burden of ProofProsecutionPlaintiff Standard of ProofBeyond reasonable doubt Balance of probabilities

24. E FFECTIVENESS OF THE ADVERSARY SYSTEM - S TRENGTHS - W EAKNESSES

25. Strengths and weaknesses of the 5 major features of the adversary system  There are five features of the adversary system of trial, and each of these features have both strengths and weaknesses.

26. Strengths and weaknesses of the 5 features 1. Role of the parties STRENGTHS Party control supports the idea of independence and party responsibility since the court is not involved in how a case is conducted and parties are expected to decide how to present the case. This also supports the idea of fairness because it means that every party is on a ‘level playing field’ in terms of choosing how to go about the case. WEAKNESSES Parties can exclude certain witnesses from trial. Some unrepresented parties may not have a good handle of their case, thus causing the possibility of an unfair hearing. Party control can lead to further animosity and delays that cause hardship.

27. Strengths and weaknesses of the 5 features 2. Role of the judge STRENGTHS The passive and impartial role of the judge is a strength because it ensures he or she is unbiased and does not take any sides, acting as a referee only and ensuring rules of evidence and procedure are followed. This also creates more confidence in the legal system because the judge is an independent decision- maker. WEAKNESSES The judge is the most experienced and specialised person in the trial room, however the judge cannot offer the parties assistance which means that their expertise is unutilised and hinders the possibility of a fairer trial should one party be on less of an equal footing than another party. Area for reform: Judges could provide more guidance to parties about evidence to lead or law to be considered, thus ensuring a more fair outcome is achieved and that parties can be prepared for trial on a more equal footing.

28. Strengths and weaknesses of the 5 features 3. Need for legal representation STRENGTHS Each party has a right to choose a legal representative. In this way they can choose someone they believe will present their case in the best light. WEAKNESSES The adversary system relies on both sides being equally represented so the truth can come out. One party to a case may not be able to afford legal representation, or may have inferior legal representation.

29. Strengths and weaknesses of the 5 features 4. Rules of evidence and procedure STRENGTHS The rules of evidence and procedure ensure that only relevant and reliable evidence is presented. The same rules apply to each party to ensure that the parties have the same opportunity to present their case, thereby providing effective access to the legal system. WEAKNESSES Often, the rules of evidence and procedure are strict, disallowing evidence that may be helpful, thus impacting on the fairness of an outcome not necessarily decided by consideration of all evidence. The complexity of the rules, it limits a person’s ability, particularly an unrepresented person, to effectively access the system. The reliance on oral evidence increases the time it takes for a matter to be heard which increases costs.

30. Strengths and weaknesses of the 5 features 5. Burden and standard of proof STRENGTHS The party bringing the case has to prove the facts to the standard of proof required. Thus every individual is treated as equal until an allegation is proven. WEAKNESSES The adversary system is more concerned with winning, with each party bringing out the facts to benefit their side, rather than finding out the truth.

31. I NQUISITORIAL SYSTEM

32. Civil Law Common Law Bijuridicial (common + civil) Customary Law Fiqh (Islamic Law) Map of the world’s legal systems

33. Who uses which system and why?  The adversary mode of trial was established in England and has developed over many centuries.  In medieval days a dispute over land between two barons was resolved by holding a jousting tournament, presided over by the king. The aim of the contest was for one knight (adversary) to knock the other knight (adversary) off his horse.  It is used in most countries that were settled by the British.  These countries are known as common law countries and include Australia, New Zealand, Canada and India.

34. Who uses which system and why?  In continental Europe, an alternative model of trial developed, derived from Roman law and known as the inquisitorial system.  Trial by combat (i.e. the early form of the adversarial system) made no pretense to truth. Somebody prevailed, so it was efficient. But we would not call that justice.  In 1198, Pope Innocent III wanted to change that. So he reformed the court system administered by the Catholic Church across Europe. The idea was that an ecclesiastical court could take the initiative and summon and interrogate witnesses even without an accusation by one adversary against another.  Countries that use this system are known as civil law countries. Countries using the civil law system include Indonesia and most European countries.

35. Who uses which system and why? The two systems are therefore grounded in two very different legal philosophies: Adversary system Inquisitorial system Partisan advocacy by the two opposing sides will best lead to the determination of truth The truth is best discovered through a disinterested inquiry conducted by a magistrate

36. What is the inquisitorial system?  The inquisitorial system (also called the investigatory system) is a system of trial where the court is actively involved in determining the facts and conduct of a trial.  The differences between the adversary and inquisitorial systems is easier to understand through the five features.

37. Role of the Parties  Due to the judge having control of the case in the inquisitorial system, the parties have a greatly reduced role. They are required to respond to the directions of the court.  While this may reduce the effects of some inequities between parties, it places control of their case in the hands of a third party.

38. Role of the Judge  The judge is much more active than the adversary system judge. The judge is involved in:  Investigating the case and gathering evidence with the police  Decisions about which evidence is to be presented  The legal issues raised at the trial  The examination of witnesses.  Therefore, parties do not have control over whether a particular piece of evidence is presented or a witness is called.  The objective is to find the truth of the matter, so the judge’s role is to find both incriminating and exonerating evidence.

39. Role of the judge But … won’t the judge just try to prosecute the accused or find in favour of the plaintiff?!  The inquisitorial judge is less impartial than adversarial judge.  However, the justification for the inquisitorial system is that the effective operation of the legal system is of benefit to society as a whole. Therefore, it is the responsibility of the state to ensure that the relevant information is brought out and the truth is reached.

40. Legal Representation  Due to the judge’s active role in relation to investigation and questioning, the legal representatives have a lesser role to play in the inquisitorial system.  The legal representatives assist the judge to find the truth.  They might ask the witnesses questions after the judge has completed the examination but must obtain permission from the judge.

41. Rules of evidence and procedure  The strict rules of evidence and procedure do not apply For example:  The court can consider hearsay evidence and evidence gathered before the trial.  This sort of evidence is not subject to cross-examination.  Witnesses also have more freedom to describe events rather than merely respond to questions.  In this way the inquisitorial system seems to be more in search of the truth by letting the witnesses recount their version, in real contrast to the adversary system’s strict rules.  There is greater dependence on documentary or written evidence collected by the judge.

42. Burden and standard of proof  No formal burden of proof or standard of proof is set on any party, as the judge is the person responsible for bringing evidence and finding out the truth. The pursuit of truth is the main objective in this system of trial.  In contrast, under the adversary system, the court’s function is not to find the truth, but to determine whether the party with the stronger case has met the standard of proof.

43. C OMPARISON OF THE ADVERSARY AND INQUISITORIAL SYSTEMS

44. Do you think Australia’s legal system would be more effective if it was inquisitorial?  Neither system is inherently superior.  Although the adversary system and the inquisitorial system are two extremes on a continuum of trial procedure, no purely adversarial or purely inquisitorial system exists in practice.  Evaluating the effectiveness of an adversarial versus inquisitorial system would require an in-depth assessment of the relative strengths and weaknesses of each system in the context of the specific country.  While the Australian legal system adopts a predominantly adversarial approach, there are also some elements of inquisitorial procedures in our legal system.

45. The use of inquisitorial procedures in Australia  Coronial inquests  Coronial inquests aim to determine the cause of reportable or reviewable deaths or fires.  They are not contests between two parties but investigations aimed at finding out the truth – the cause of the death or fire.  The coroner takes an active role in investigating the circumstances surrounding the death or fire, which includes questioning witnesses and visiting the scene of the incident.  Family Court procedures.  The judge, rather than the parties or their legal representatives, decides how the trial will be run, as he or she controls the hearing and inquiry process. Their focus is on gathering the best information possible about the children involved and their needs.

46. The use of inquisitorial procedures in Australia  Some tribunals  Some tribunals have been given investigatory powers, such as the Commonwealth Administrative Appeals Tribunal (AAT). The AAT is ‘not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’.  In contrasts, VCAT is mainly adversarial in its approach to hearings. The tribunal member hears the case and leaves the investigation and questioning to the parties. However, VCAT has relaxed the strict rules of evidence and procedure to encourage a less formal atmosphere.

47. R EFORM TO THE ADVERSARY SYSTEM

48. Method of suggesting reforms When suggesting a reform or improvement you need to: 1. Describe the reform 2. Explain how that reform improves the current system by discussing how the reform: addresses a certain weakness; or achieves an objective (such as one of the elements of an effective legal system).

49. Possible reforms 1. Increased judicial involvement in proceedings 2. Simplification of the rules of evidence and procedure with respect to witness statements 3. Encouragement of alternative methods of dispute resolution 4. Increased availability of legal aid to facilitate improved access to legal representation

50. Possible reforms 1. Increased judicial involvement in proceedings  Currently, the judge or magistrate of a case in the adversary system can ask questions and call witnesses, but this is usually done to clear up points made in the proceedings.  This power could be increased to allow judges to ask questions and call witnesses to ensure cases are decided correctly – in the interests of fairness and finding the truth.

51. Possible reforms 1. Increased judicial involvement in proceedings (cont.)  The inquisitorial system has some useful aspects that could be incorporated into our current system. Already some parts of our system such as coronial inquests are more inquisitorial in nature. It is conceivable that the recommended extension of judicial involvement would similarly benefit the judicial system.  RISKS: The judge could be seen as biased towards one side by bringing out evidence that would benefit that side; and a judge who ‘descends into the arena’ loses the advantage of being an uninvolved observer.

52. Possible reforms 2. Simplification of the rules of evidence and procedure with respect to witness statements  Witnesses could be allowed to tell their own story without the interruption of questions.  The judge could question the witnesses to clear up any ambiguities and any concern about the reliability of the witness. Both parties could then cross-examine the witness, with the judge checking that the cross- examination was not too lengthy in proportion to the importance of the case.  This would help the parties to give their evidence in a more relaxed manner.

53. Possible reforms 3. Encouragement of ADR  Tribunals offer an alternative to the strict adversarial system within a trial for civil disputes, in that they first encourage the parties to settle the dispute between themselves.  Greater use of tribunals could lead to more parties in civil cases reaching a resolution more quickly and cheaply and in a more informal atmosphere.  The jurisdiction of tribunals could increase to cover more types of disputes. For example, the VLRC suggested an extra list dealing with disputes relating to fences should be added to VCAT to avoid the problems experienced by hearing these disputes in the Magistrates’ Court. This has not yet been implemented.

54. Possible reforms 4. Increased availability of legal aid  For the legal system to be effective, legal representation is very important and can help to get at the truth.  Parties are likely to be disadvantaged without legal representation, especially if one side has legal representation and the other does not.  However, legal representation is very expensive and funding for Victoria Legal Aid is limited, thus limiting the number of individuals who can receive Legal Aid.  Increasing the funding of Legal Aid facilitates improved access to legal representation.

55. C HECK FOR UNDERSTANDING

56. Learning Intentions At the end of this topic, we will be able to explain: 4.2.2Major features of the adversary system of trial, including the role of the parties, the role of the judge, the need for the rules of evidence and procedure, standard and burden of proof and the need for legal representation 4.2.3Strengths and weaknesses of the adversary system of trial 4.2.4Major features of the inquisitorial system of trial 4.2.5Possible reforms to the adversary system of trial SD 27

57. Learning Intentions At the end of this topic, we will be able to: 4.2.17Define key legal terminology and use it appropriately 4.2.18Discuss, interpret and analyse legal information and data 4.2.19Apply legal principles to relevant cases and issues 4.2.20Critically evaluate the adversary system of trial 4.2.21Compare the operation and features of the adversary system with the inquisitorial system SD 27