The Adversary System
1. The adversary system is the main system of trial in Australia where the two parties battle to win the case. There are strict rules of procedure that must be followed and the judge and the jury are impartial arbitrators.

2. In the adversary system each party has control of their own case. This is known as party control, where they get to decide how evidence is presented, providing the rules of evidence and procedure are followed, and they get to prepare their own case and present it.

In the adversary system, parties are responsible for instigating proceedings. In a civil case the plaintiff is responsible for deciding whether to go to court to sue the defender, whereas in a criminal case it’s the prosecution who decides whether to charge the accused. The parties are responsible for investigating the facts of the case (deciding what evidence to presents, witnesses to call and questions to ask) and investigating the law, which may bring forward relevant precedents. In a civil case, the parties also decide whether to have a jury and choose whether they want to have legal representation, and the quality of that legal representation.

Party control ensures that parties are responsible for the outcome of the case, have the responsibility to prepare their case and then both sides fight to win their case. Cases are heard without state interference. However, party control increases the costs involved in taking a matter to court.

3. The role of the Judge ensures that the contest is fair and impartial so that both sides have an equal chance to win. The judge decides on the admissibility of evidence, questions of law and ensures the burden of proof is discharged. The judge decides the case when there is not jury, and sentences the accused in criminal cases. The adversary system could not function of the judge was not independent and impartial. The judge cannot favour one side nor have previous knowledge of the accused or parties in a civil case.

4. The burden and standard of proof are essential elements of the adversary system. They ensure that the person bringing the matter to court has to prove their case to the required standard. In a criminal case the prosecution brings the case, and in a civil case it’s the plaintiff. The standard is the strength of proof required in the case. In criminal cases the prosecution needs to prove guilt beyond reasonable doubt, and in civil cases the plaintiff needs to prove their case on the balance of probabilities.

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