The Australian legal system uses an adversarial system. This means that our system pits two parties against each other in order to arrive at the truth. The trial is a competition between two parties involved in a dispute. This means that the courts to not inquire as to the truth, the truth is revealed before them as parties bring evidence and make arguments. The role of the parties is to convince the court (judge or jury) about the truth.
Both Criminal and Civil trials are adversarial.
Always rests with the accuser, in both criminal and civil trials.
In a criminal trial the standard is 'beyond reasonable doubt'. In a civil trial it is 'on the balance of probabilities'.
The defendant does not have to provide evidence at their trial. They may do so if they wish to.
Defendants are presumed to be innocent unless it can be proven otherwise. If there is doubt as to the standard of proof, the accused must be found innocent.
Evidence must be applicable to the case.
Witnesses can only give evidence based on what they themselves have seen or heard. They can not give evidence that they heard form someone else.
Only facts of what is seen or heard by the witness can be given as evidence. Opinion is not acceptable.
Only conclusive evidence can be provided. Assumptions due to circumstances are not permitted.
Impartial judges
Judge is independant of and separate from the prosecuting authority
Each party has the right to be legally represented
Single continuous trial ensures case is seen as a complete event
Strict rules of evidence maintain consistency
Process of examination and cross-examination is fair to both parties
Rules of procedure mean that each party is treated fairly
Onus on the individual bringing the allegation to substantiate their claim
Expertise of the judge is not fully utilised
A judge cannot offer any assistance to an unrepresented party
Cost of legal representation may deter individuals from taking action
Unrepresented parties will be engaged in a less than equal contest
Delays in preparing cases mean that witnesses may not remember all facts
Some evidence may not be brought to court, so the jury does not have access to all evidence
Witnesses can only respond to questions and cannot tell their whole story
Juries may not remember all evidence and may lose focus in a long trial
The system can be seen as more focused on proof than truth