Episode 2 – The Adversarial System

Transcript

EPISODE 2 – THE ADVERSARIAL SYSTEM

Stephen Parker

In the first episode of this exciting series, we finished by talking about judges and the need for them to be independent of government if a country is to have the rule of law.

Stephen Bottomley

In this episode we talk about the kind of court system we have, the adversarial system, because this defines what a judge can and cannot do.

Stephen Parker

People who enter a court for the first time are often surprised at how arguments go backwards and forwards between one side and the other. 

Stephen Bottomley

Whether it is a criminal case or a civil one (such as for breach of contract or compensation for negligence) the judge or magistrate might be silent for long periods. 

One side presents their case, then the other side presents theirs.

Stephen Parker

During it all there might be arguments about technical points, which the judge will have to decide, but otherwise it is not until the end that a judge might sum up or, at some point later, hand down their decision.

Throughout the whole process there is an atmosphere of confrontation between opposing lawyers, based on each side’s desire to win, and an air of suspense about the final outcome.

Stephen Bottomley

What about the truth, I hear both our listeners ask?  Why doesn’t the judge get involved at an early stage and decide which lines of enquiry should be pursued? 

Why are people more focused on who wins than what really happened?

Stephen Parker

The answer lies in the adversarial system of justice that Australia inherited from England.  All of the “common law” legal systems coming out of England, such as in north America, New Zealand, India and some African countries, have versions of the adversarial system. 

Its central feature is that it is up to the parties to decide how and what they are going to argue. 

The judge then decides which party has the better argument, on the facts or in the light of what the law says, but not whether there was an even better argument out there somewhere waiting to be discovered. 

In fact, if the judge strays too far from the arguments and evidence presented by the parties there is a real chance that their decision could be overturned on appeal.

Stephen Bottomley

Isn’t there a better way, those same two listeners cry out?

Stephen Parker

Well, there is certainly a different way.

Stephen Bottomley

The main alternative to the adversarial system, at least in so-called western countries, is the inquisitorial system.

In an inquisitorial system, the judge is actively involved from the outset in investigating what happened, deciding who should be called as witnesses, and in putting forward a view on what the relevant law is. 

The two sides, with their lawyers, obviously try to shape things in a way that suits them, but once the case has commenced it could go off in a direction that surprises them both.

Many cases in inquisitorial systems go through a series of hearings rather than culminating in a single, big trial event.

Stephen Parker

It must make for boring tv compared with the adversarial system.

Stephen Bottomley

The inquisitorial system comes out of a different tradition; in particular from France, and before that ancient Rome. 

It usually goes hand in hand with the idea that all law should be written down in comprehensive “codes”, which are then merely interpreted by judges, whose decisions are not binding precedents for later judges. 

In the common law tradition previous decisions of courts (“precedents”) kept evolving the law.  And a ruling by a superior court was and still is binding on inferior courts in the same hierarchy.

Stephen Parker

In Australia, we can see elements of the inquisitorial system in many “tribunals”.  Although these are not actually courts, though they are practically important in deciding people’s rights and duties in many areas. 

Stephen Bottomley

The adversarial system stems from how countries in the English tradition view the rule of law, and in particular what amounts to “natural justice” or “due process”. 

Because we have a strict view that judges are, and must be seen to be, independent from “the state”, and possibly because we place more importance on the liberty of the individual, we are reluctant to see a judge become too involved in how each side’s case unfolds. 

The judge is an umpire, not a player.

Stephen Parker

In criminal cases, under our system there is a presumption of innocence.  It is up to the state, in the form of the prosecution, to prove beyond a reasonable doubt that the defendant is guilty as charged. 

Or in civil cases normally it is up the person bringing the case (“the plaintiff”) to prove their case on the balance of probabilities. 

Usually, this means that the person answering the charge or the claim does not have to do anything until the other side has produced their evidence to the required standard.

 In fact, sometimes a defendant applies to have a matter struck out early and argues that the prosecution or plaintiff is clearly not going to be able to prove their case.

Stephen Bottomley

In criminal cases, this can also mean that a person is found not guilty because the prosecution has failed to prove their case beyond a reasonable doubt. 

It might even turn out later that the defendant was actually guilty of the offence they were charged with, but under the adversarial system it was for the prosecution to prove it, not for the defendant to disprove it. 

Stephen Parker

Anyone who has lived in Europe or another rule of law country which practises the inquisitorial system, will know that their way often seems to work well enough in its own context. 

They might like to grumble about it because grumbling is such good fun, but there is no real move to change it.

In practice, each system is embedded in the history and culture of its own country and it is unlikely to be overthrown, although change by slow evolution is possible.

The adversarial system has many supporters, particularly in the legal profession, which possibly attracts the kind of people who like to argue, especially when they win!

Stephen Bottomley

But it also has its detractors.  It seems like an indirect and flawed way of getting at the truth, compared with the inquisitorial system, which is supposed to be a direct search for the truth. 

And it might also be why non-lawyers complain about “technicalities” and lawyers’ tricks.  I suspect it is why many people, from at least shakespeare’s time, have been ambivalent about lawyers, or downright hostile to them, in common law systems.

Maybe lawyers like the adversarial model because they are more necessary in it.  If one side has a lawyer and the other doesn’t because they can’t afford one, and if the judge is meant to be a neutral and largely silent umpire, then the scales of justice are already tipped.

Stephen Parker

Yes, and this is an increasing problem as legal aid funds have dried up in many countries.  Also, if a corporation is often in a court but a disgruntled customer is almost never in a court, we have an imbalance of experience and preparedness for the case. 

This is sometimes called the problem of repeat-players versus one-shotters.

Stephen Bottomley

Maybe in our system the truth is sometimes missed, maybe it isn’t.  Maybe it also reflects imbalances of power in the wider society. 

But the adversarial system is the balance we have struck between an individual’s liberty and the public interest, under the rule of law.

FURTHER READING

Stephen Bottomley and Simon Bronitt, Law in Context, 5^th edition, Federation Press 2024, pp241-256

Sir Anthony Mason, The Future of Adversarial Justice, 4.pdf (austlii.edu.au)