Australian courts use the adversary system of trial when resolving disputes. It is a system based on the notion of two adversaries battling in an arena before an impartial third party, with the emphasis on winning.

Role of the parties

The two adversarial parties have full control over proceedings. This means that they are responsible for pre-trial procedures, and preparation and presentation of their respective cases. They must gather evidence, organise witnesses and employ experts. On a procedural level, they are also responsible for determining the time and place of the hearing. This role ensures that parties have the ability to present the best case possible.

Role of the judge

The judge’s main roles during the case are to control proceedings and ensure that rules of evidence and procedure are followed. This means that a judge decides what evidence is admissible, and what evidence is inadmissible, and therefore to be excluded from the trial. At the conclusion of the two parties’ presentations, a judge will instruct the jury if there is one, summing up the case and instructing them of the relevant law to be followed. With or without a jury, the judge decides the relevant law to be applied. However, when there is no jury, the judge decides on questions of fact. This means that the judge determines which presentation of evidence is more persuasive and, ideally, truthful, before reaching a verdict. The judge always decides on the sanction (in criminal cases) or remedy (in civil cases).

Rules of evidence and procedure

Rules of evidence and procedure are strict in the adversary system of trial, and aim to ensure that the trial is fair and unbiased, and that parties have an equal opportunity to present their case.

Some rules of evidence are:

• That only certain types of evidence are admissible, and others are inadmissible
• Only relevant and reliable evidence is allowed. This can come in the form of oral, documentary or expert evidence
• Inadmissible evidence includes hearsay evidence, and evidence that has been obtained unlawfully
• These rules ensure that parties are treated fairly

Some rules of procedure are:

• A hearing is to be single and continuous
• Questioning stages are organised strictly
• Delays will occur but are ideally minimised

Standard and burden of proof

The burden of proof refers to who has the responsibility to prove their case in court. In criminal proceedings, the prosecution must prove the defendant’s guilt, and in civil proceedings, the plaintiff must prove that the defendant was liable.

Standard of proof refers to the level of convincing required to prove a case. In criminal cases, the prosecution must prove that the defendant is guilty “beyond reasonable doubt” i.e. it is near certain that they committed a crime. In civil cases, the plaintiff must prove that the defendant infringed their rights on the “balance of probabilities” i.e. it is more likely than not that the defendant was in the wrong.

Need for legal representation

Often the responsibility of preparing and presenting one’s own case is delegated to legal representation, and a party will be disadvantaged without it. Solicitors handle most of the pre-trial preparation, while a barrister conducts the trial presentation, including questioning of witnesses. Legal representatives are vital in assisting the parties. They understand the complex rules involved in bringing a case to court that an ordinary citizen may not, and are therefore able to ensure that a party’s case is prepared and presented in the best possible manner.

See also:

Strengths and weaknesses of the adversary system of trial