Adversarial system (strengths and weaknesses)

Strengths

1. Impartial judge and jury

2. High quality evidence

3. Parties retain control of trial

4. Procedural fairness (natural justice)

5. Strong protections for rights of the accused

Impartial judge and jury

• no investigating, questioning, introducing evidence, directing trial, compile dossier

• neutral referee overseeing contest, adherence to strict processes for procedural fairness/natural justice

• give ratio decidendi→ judicial reasoning transparent and subject to appeal

• jury is impartial, peers of accused, community perspective into judicial matters, decide guilt based on facts

High quality evidence

• low quality evidence NEVER is considered

• no weighing→ judge uses strict exclusionary rules endorsed transparently and can be contested by parties through argument→ incorrect evidence procedure is grounds for appeal

Parties retain control of trial

• parties run case, present, find, object to evidence, argue meaning and interpretation of law

• can end case without judge consent- p abandon trial or d pleading guilty/ plaintiff and defendant can reach agreement to resolve dispute out of court or abandon

Procedural fairness (natural justice)

• strict adherence to inflexible procedure enforced by judge, not change-able, improper procedure is grounds for appeal

• hearing both sides equitably, high quality evidence (rules of evidence), impartial adjucation (neutral judge and jury), transparent and open (public nature of trial, ratio decidendi, standard of proof)

Strong protections for rights of the accused

• robust right to silence, common law right, can’t be interpreted as admission of guilt

• robust presumption of innocence- charged and prosecuted by executive, but only detained by judiciary→ strong SOP protecting from overzealous use of executive power. immediate acquittal if prosecution fails to uphold burden of proof and standard of proof.

• habeas corpus: right to stand before court, hear charges, challenge detention→ can’t be detained by executive before court conviction (unless court approved remand)

Weaknesses

1. Overreliance on legal expertise

2. high cost to parties

3. potential for strategic manipulation

4. winning is more important than the truth

5. juries may be prejudiced by media, jury decisions are unaccountable

6. time and delays

Overreliance on legal expertise

• legal advice essential to navigate complexities of procedure, rules of evidence, law → success depends on quality of legal advice as much as the truth

• theoretically, passive judge can’t assist (even unrepresented) party

High cost to parties

• overreliance on costly legal expertise→ access to justice should be a right not dependent on wealth but access and representation are rationed by price: serious flaw

• legal aid often underfunded, overworked, only in criminal trials - civil must pay for own representation

• case management aims to prevent wealth use to exhaust opponent and win through superior resources

Winning is more important than finding the truth

court’s goal: adversarial trial assumes contest will reveal the truth by producing best evidence and argument- BUT parties’ goal is different: parties aim to win more than to reveal truth (truth can only favor one side and the other side wants to prevent discovery)

Potential for strategic manipulation

• manipulation possible: control of trial, reliance on legal expertise, strict rules and procedures

• call own witnesses, present own evidence, apply rules and procedures favorable to case, confuse jury using legal jargon/lengthy testimony

• questioning:

• witnesses only answer questions, not tell story so lawyers can construct questions to induce answers.

• Use hostile questioning e.g. objections disrupting flow and clarity of evidence. Victims fear the trial processes (retell assault/ DV and have credibility questioned by skilled barristers creating doubt) and don’t press charges.

Juries may be prejudiced by media, jury decisions are unaccountable

• judge charges jury: instructing what evidence can/ can’t be used to determine verdict

• only quality evidence meeting rules of evidence should be used BUT easy access to media, communication with non- jurors is hard to regulate. hard to quarantine jurors from low quality outside influence that may cause prejudice (especially high-profile cases with media coverage, speculation)

• misconduct→ mistrial, expensive, time consuming, denies justice to accused and victim e.g. DPP v Lehrmann (2021)

• jury doesn’t provide reason, only verdict: no way to know about misconduct, hard to appeal that they made a mistake without knowing their reasoning

time and delays

• can last weeks to years: complexity, detailed evidence, many witnesses, lengthy testimony, adjournments

• long pretrial processes for civil and criminal + heavy court workload causes delays

• 2010 civil trial case management reform to reduce time for finalizing cases. criminal trials don’t have similar reforms.

• justice delayed is justice denied: public costs, denies justice for parties