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.

Whether it is a criminal case or a civil case (such as a claim for damages) the judge or magistrate might be silent for long periods.  One side presents their case, then the other side presents theirs.

During it all there might be arguments about specific points, which the judge might decide on there and then, 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, based on each side’s desire to win.

What about the truth, you might 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?

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, India and some African countries, have versions of the adversarial system.

The central feature of it all 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 best argument on the facts or in the light of what the law says, but not whether there was a 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.

There are alternatives to the adversarial system, usually described as the inquisitorial system.

In an inquisitorial system, the judge is actively involved from the outset in investigating what happened, deciding which witnesses to call 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.

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 “Codes”, whereas in the English tradition previous decisions of courts (“precedents”) help to make up a more complicated view of how to find the law.

In Australia, we can see elements of the inquisitorial system in many “tribunals”.  These are not courts, although they are practically important in deciding rights and duties in many areas.

We do also now see a more active involvement by many Australian courts in the lead-up to the trial itself, by the judge who will hear the case or by a different judicial officer. But by and large once the hearing begins the judge should be more passive and leave it up to the two sides to engage in a contest or competition as to who has the better argument (not necessarily the right one!).

The adversarial system stems from how countries in the English tradition view the Rule of Law, and in particular what amounts to “natural justice” and “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.

The adversarial system leads to some consequences that differ to some extent from inquisitorial proceedings.  In criminal cases, under our system there is a presumption of innocence, and in civil cases normally it is up the person bringing the case (“the plaintiff”) to prove their case to a particular level.

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, although there are risks in a defendant just opting out and hoping for the best.  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.

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, and the defendant might not have given evidence at all or produced other witnesses.  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.

Usually, also, the prosecution cannot have a second bite at the cherry as the defendant should not be put in “double jeopardy”, although this is now a complicated area.

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

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.

Some legal commentators who study alternative approaches around the world think that the adversarial system is preferable in criminal cases and the inquisitorial system is preferable in civil cases. The adversarial system protects the liberty of the subject better, but the inquisitorial system better helps victims of wrongs to obtain compensation.

It doesn’t seem practical, however, for the two to live comfortably side by side in the same country. By and large, you are stuck with one or the other. In Australia, there is an argument that our Constitution actually requires an adversarial system, at least at federal level.

Why does any of this matter to you if you are involved in a court case, criminal or civil?  It’s about being ready for a surprise.  It’s about understanding why your lawyer might be so focused on what the other side will say and can prove. It’s about a focus on tactics.  It’s about understanding why the judge does what they do.

And it is actually about understanding what a jury does and doesn’t do, in those matters where there is a jury.  Essentially, juries decide questions of fact, under the direction of the judge about the law.  Even if, privately, the jury members have a theory that what actually happened is something that neither party has put forward, all they can do is decide whether the prosecution has established the facts that the judge has said it needs to establish to the required standard.

Maybe in our system the truth is sometimes missed, maybe it isn’t.  On the other hand, there is more to life than being involved in drawn out, unpredictable inquiries by officials who ultimately are appointed by governments.  The adversarial system is the balance we have struck between an individual’s liberty and the public interest, under the Rule of Law.

– Written by Emeritus Professor Stephen Parker, Galbally Parker

About Stephen Parker

Professor Stephen Parker was the Vice-Chancellor and President of the University of Canberra from 1 March 2007 until 1 July 2016.  He was previously the Senior Deputy Vice-Chancellor at Monash University in Melbourne. Stephen has published books, monographs and articles on the court system, legal ethics, family law and children’s rights.  He is also the co-author of a textbook called Law in Context, which is designed to introduce law students to the way that other disciplines view law.

He has held various major research grants in relation to projects on lawyers’ tactics, lawyers’ values, discretionary rules, family law, judicial independence and reform of civil procedure.  In 2012 he was elected a Fellow of the Australian Academy of Law. Stephen was made an Officer of the Order of Australia (AO) as part of the Australia Day Honours in January 2014 for his distinguished service to tertiary education through administrative, academic and representational roles, and as a leader in the growth and development of the University of Canberra.