Evaluate the effectiveness of the Adversary System as a

means of achieving justice

The Adversary System of trial that we have in Australia is based on
the principals of having two opposing sides presenting their case to
an impartial judicial officer. This system has been inherited from
Britain and is the basis our court system and consequently the
means of achieving justice. This system of trial is effective in
providing the role of the parties, role of the judge, burden and
standard of proof, rules of evidence and procedure and the need for
legal representation. There are however many limitations to the
effectiveness of the Adversarial
System
The adversarial system relies on a two-sided structure each
presenting their own case to the judge or jury and determining the
truth in the case. It applies to both criminal and civil cases, but in
criminal case the adversarial system is most controversial.
Supporters often claim that the adversarial system is fairer system
as it allows each party equal opportunity to present their case.
Lawyers are given equal opportunity to present the truth. However,
opponents of the system argue that the competing side are not
equal
In the role of the parties, they are able to control their own case,
engage legal representation to present their own case in the best
matter and decide what factors are brought into the court. For the
role of the judge, the judge is impartial, meaning that the judge
makes sure the parties are treated fairly as it creates more
confidence in the legal system because their independent. In
criminal cases, parties are independent of prosecution. In civil
cases, parties are independent of parties. In burden and standard of
proof, the case brought in by the parties must prove the facts to the
standard of proof required. That is beyond all reasonable doubt or
on the balance of probabilities. Rules of evidence and procedure
ensure fair and unbiased hearing. Oral evidence helps if witness is
sincere. Allows each party to present their case and test the
evidence of the other party through examination and crossexamination. Also all parties are treated equally. Each party has the
right to choose someone who they feel will win the case in their
legal representations.
The role of the parties can lead to animosity because each party is
battling for their own case. High cost of legal representation by
hiring the best lawyer, so one could have a higher chance of
winning. It could also increase delays and increase hardship. Role of
the judge, the judge cannot offer any assistance to the parties. The
judges experience and knowledge of the law is underutilised. It
could lead to an unfair result if the party is poorly represented. The

weakness involved in burden and standard of proof, is the fact that

this system is more concerned in winning rather than to find out the
truth. Each case only brings out the fact, which benefits their side.
Rules of evidence and procedure may lead witness to intimidate and
say something misleading. Witnesses can only respond to questions.
Oral evidence relies on the memory of witnesses. Vital evidence
may be inadmissible and the truth may not come out. Legal
representation may be costly, as one party may not afford legal
representation, which reduces access. Both sides must be equally
presented for the adversary system to be effective. If one side has
an inferior legal representation, it may lead to an unfair hearing.
The aim of the Adversarial system is to achieve justice by providing
a forum in the courts where cases can be heard and consequently
this yet is very resource inefficient. In family law cases the
inefficiency of the Adversarial system is evident. It is important to
reduce time, cost, an animosity in family disputes, so mediation had
been introduced.
One of the most controversial aspects of the Adversarial System is
to look at if justice has been achieved. Through a range of cases we
can see this is an unobtainable concept and very subjective. On one
hand the adversarial system is effective in achieving justice when
able to convince the judge or jury that his or her perspective is the
correct one. But on the other hand it is problematic as the truth
would not be revealed.