VCE Legal Studies
UNIT 4 AOS2 – TOPIC 2: ADVERSARY SYSTEM
The adversary system is a system of trial ________________________________________________________________________
The role of the adversary system is to provide a ___________________________________________________________________
The adversary system has five major features:
Although a jury is often used in trials in the adversary system, juries are NOT a feature of the adversary system since the system can
operate effectively without a jury.
Feature
Description
Strength
Weakness
Role of the
parties
Role of the judge
Legal
representation
Rules of
evidence and
procedure
1
Burden and
standard of
proof
2
How do each of the features of the adversary system achieve the three key elements of an effective legal system?
See MABL pg 288-290.
Fair and Unbiased Hearing
Access to the Legal System
Timely Resolution
Role of the
parties
Role of the
judge
Legal
representation
Rules of
evidence and
procedure
Burden and
standard of
proof
3
Comparison of the Adversary and Inquisitorial Systems
Adversary System
Inquisitorial System
Primary
objective
Role of the
parties
Role of the
judge
Rules of evidence and procedure
Legal
representation
Collection
of
evidence
Type of
evidence
Character
evidence
and past
record
Witnesses
Burden and
standard of
proof
4
.
.
Possible
Reforms
to the
Adversary
System
.
.
5
UNIT 4 AOS2 – TOPIC 2 – PAST EXAM QUESTIONS
‘Every person in Victoria can be confident that, if he or she should face trial in Victoria, the trial will be
conducted with impartiality, fairness and independence.’
Referring to the above statement, explain two features of the adversary system of trial.
2012, Question 7 (4 marks)
Task
Word
Content
Time
Explain two features of the adversary system of trial and compare them with the inquisitorial system of trial.
2009, Question 8b (6 marks)
Task
Word
Content
Time
Compare one major feature of the adversary system of trial with one feature of the inquisitorial system. Would
the adversary system be improved if it adopted that feature of the inquisitorial system? Justify your answer.
2007, Question 10 (6 marks)
Task
Word
Content
Time
6
‘The use of the adversary and jury systems in Victorian criminal trials ensures that we have an effective legal
system.’
Discuss the above statement and indicate the extent to which you agree with it, giving reasons for your answer.
Include in your answer an explanation of two elements of an effective legal system.
2008, Question 11a (10 marks)
Task
Word
Content
Time
A Supreme Court Justice recently declared that the adversary system of trial should no longer be used in
Victoria.
Critically evaluate the use of the adversary system of trial. In your answer describe one possible improvement to
the adversary system.
2010, Question 11 (10 marks)
Task
Word
Content
Time
Discuss the extent to which the adversary system achieves one of the elements of an effective legal system.
In your answer, compare two features of the adversary system with the inquisitorial system.
2013, Question 13 (10 marks)
Task
Word
Content
Time
7
Report
extent in their ability to make law; however, they have methods or techniques to be able to manoeuvre around these
limitations. Reasons were then provided as to how judges are limited, and what techniques they could use to still make
law.
***
The following
is in
an example
a good
answer.
‘Every
person
Victoriaofcan
be confident
that, if he or she should face trial in Victoria, the trial will be
conducted with impartiality, fairness and independence.’
Although judges can make law, they are limited in their ability to a certain extent. Courts are limited in their ability to make law
because they act ex-post facto. This means that courts cannot make a law until a case comes before them. Therefore, they cannot
Referring
towhenever
the above
explain two features of the adversary system of trial.
make laws
theystatement,
want (unlike parliament).
2012,
Question
(4legal
marks)
Courts are also limited because they are bound by precedents made by higher courts in the same court
hierarchy
where7the
principles within similar circumstances. Therefore, if a binding precedent exists, courts do not have any ability to change the law
and must abide by it.
Courts are often also limited because judges can be very conservative and reluctant to change a bad law. Courts also cannot
seek public opinion or consult committees before making a decision.
This question was generally well done. Many students were able to explain two features of the adversary system
this, however, courts do have some ability to make law. Judges are not ‘ elected’ by the people and are therefore free to
withDespite
reference
to the given statement. The more commonly used features were the role of the judge, and the rules
make decisions and not be influenced or pressured by consequences of not being re-elected if they make an unpopular ruling.
of evidence
and
However,
students
couldfollowing
have used
any of
the fivemethod
features
the adversary
Further, judges procedure.
have some flexibility
in being
able to avoid
precedent.
A common
is toof
distinguish
the factssystem
of
of trial,
identified
thethestudy
theisrole
of the
judge,thereby
the role
parties,
thedifferent
need tofor
the case
before theminfrom
facts indesign
the caseas
which
a binding
precedent,
beingof
freethe
to make
a ruling
thelegal
binding precedent.
Another common
methodof
is to
disapprove
a decision
made
in a of
higher
court, therefore
opening the door for
representation,
the burden
and standard
proof,
and the
need for
rules
evidence
and procedure.
that case to be overruled in a future case in a higher court.
Some students referred to the jury system as a feature of the adversary system; however, the jury system is not a
Overall, courts do have the ability to make laws, but are limited to some extent.
feature
and is a separate system.
Question 8a.
Weaker
students made no reference to the given statement.
Marks
0
1
2
Average
1.3
21 of a good
56 answer.
The %
following 24
is an example
Any of the following processes was acceptable:
first reading:
the long title
is read,
putthe
on parties.
the agenda
andadversary
copies of the
Bill are
circulated
One •feature
of the adversary
system
is the
the Bill
roleisof
The
system
adopts
a process whereby
•
second
reading:
compatibility
with
the
Charter
of
Human
Rights
and
Responsibilities,
the
purpose
the Bill is or
each party has complete control of their own case and decides which evidence to use
whenofdefending
outlined,
the
explanatory
memorandum
is
presented,
debating
commences
and
a
vote
is
taken
prosecuting the case. This supports the idea of independence – it means that the court is not involved at all in
consideration
in detail
each
in detail
once thethe
speaker
and amendments
how •a case
is conducted
and (optional):
is left up to
theclause
partyistodiscussed
decide how
to present
case. leaves
This also
supports the idea
can
be
made
of fairness because it means that every party is on a ‘level playing field’ in terms of choosing how to go about
• third reading: the house will formally accept or rejected the Bill, may be further debate, vote
the case.
• certification: the Bill is certified by the Clerk of Parliaments after it has passed through both houses
• royal
assent:ofpresented
to the Governor-General
assent/signing
Another
feature
the adversary
system is the rolefor
ofroyal
the judge.
The judge in an adversary trial is required to
•
proclamation:
comes
into
effect
on
a
day
stated
in
the
Act
or on
the way
Governor-General
(if
act impartially, as an unbiased independent umpire who does
nota day
get proclaimed
involved inbythe
the parties present
neither,
28
days
after
royal
assent).
their case. This supports the idea of independence (as the judge takes no sides), fairness (as it means that the
parties are being ‘umpired’ and are bound by the same rules) and impartiality (as there is no biased umpire).
The legislative process of a Bill through parliament is a fundamental part of Unit 3, Area of Study 1, and students must
be familiar with the various steps, as well as be able to explain what happens in each step.
***
Weaker answers identified a process but were unable to provide enough detail as to what happens in the process in
Explain
twofull
features
the assent
adversary
system
of trialresponse,
and compare
with thedidinquisitorial
system
order to gain
marks. of
Royal
was the
most popular
though them
some students
not explain what
royalof
trial.
assent is – the process of the Queen’s representative signing the Bill. The second reading stage was also very popular,
but again some students were not able to describe what happens in this process.
2009, Question 8b (6 marks)
Question 8b.
Marks
0
1
2
3
4
5
6
Average
%
3.6
15
5
10
13
17
18
23
Features of the adversary system which needed to be explained then compared were:
• the
roleadversary
of the parties
Features
of the
system which needed to be explained, then compared were:
• the role of the judge
• the
the role
need of
forthe
legal
representation
1.
parties
• the
rules
of evidence
and procedure
2.
role
of the judge
• the
standard
burdenrepresentation
of proof.
3.
need and
for legal
4. rules of evidence and procedure
5. standard and burden of proof.
Legal Studies GA 3 Exam
Published: 9 March 2010
7
8
Report
Following are some of the points that could have been made in response to this question.
This question was generally handled well, with many students showing good knowledge of the features of the
Strengths system of trial. Some students struggled to compare their chosen features with those of the
adversary
• Parliament
inquisitorial
system.can investigate the whole topic and make a comprehensive set of laws.
• Parliament has access to expert information and is therefore better able to keep up with changes in society.
Parliament
providesby
ansaying
arena for
debate.
Some• students
responded
that
the jury system is a feature of the adversary system of trial. The study
• specifically
Parliament can
its power
to make
lawadversary
to expert bodies.
design
listsdelegate
the major
features
of the
system and students should be familiar with these
• Parliament
is able
to involve
law-making.
features.
Jury system
is not
listed asthea public
featureinof
the adversary system. Another common error made by students
• Parliament
can inquisitorial
change the law
as the the
needdefendant
arises
was stating
that in the
system
is ‘guilty until proven innocent’.
• Parliament can make law in futuro.
• Parliament
democratically
elected.
This means that, in theory, its members reflect the feelings, attitudes and
The following
is anisexample
of a good
answer.
values of the community. Members eventually face re-election, and this is an incentive to ensure that they
continue
to adversary
reflect the community’s
views
and role
do not
an unaccountable
One feature
of the
system of trial
is the
ofact
theinjudge.
The judge manner.
generally acts as an independent
and impartial adjudicator, ensuring that the parties adhere to the rules of evidence and procedure. A judge will
Weaknesses
not become involved in what evidence is brought before the court. In contrast, in the inquisitorial system, the
• Investigation and implementation of new laws is time consuming and parliament is not always able to keep up
judge(s) play an active role, taking part in the investigation, the questioning of witnesses as well as generally
with changes in society.
running the trial, collecting the evidence and ultimately reaching a verdict.
•
Members of parliament might be more influenced by political considerations, rather than the community good,
when considering what attitude to adopt towards a Bill.
Another
feature is the rules of evidence and procedure. In the adversary system, witnesses must only answer the
• The process of passing a Bill is time consuming.
questions
put to them by the lawyers/barristers. There are strict rules relating to evidence involving hearsay,
• Delegated authorities are not all elected by the people and there may be too many bodies making laws.
character
andpossible
past convictions
in law
criminal
trials. In
thechanging
inquisitorial
the orrules
of evidence
and
• It evidence
is not always
to change the
in accordance
with
valuessystem
in society,
to reach
a
procedure
are
more
relaxed.
Witnesses
can
recount
their
own
version
of
events
and
hearsay
evidence
is
compromise where there are conflicting values in society.
permitted. In this way the inquisitorial system seems to be more in search of the truth by letting the witnesses
recount
their
version,
contrast
the adversary
system’s
strict rules.
Following
is an
extract in
thatreal
examines
onetostrength
of parliament
as a law-maker.
One strength of parliament as a law-maker is that it is able to***
delegate some of its law-making powers to expert bodies such as
statutory corporations. This delegation of power saves Parliament time as well as ensuring that laws are made by those with
particular
expertise
an area. However,
some people argue
thatof
by trial
delegating
powers
is allowingsystem.
Compare
one
majorin feature
of the adversary
system
withlaw-making
one feature
ofParliament
the inquisitorial
unelected bodies make laws. Although this is true, most bodies that make delegated legislation are not elected (with the exception
Would the adversary system be improved if it adopted that feature of the inquisitorial system? Justify
of local councils), nevertheless, Parliament scrutinises the whole process of delegation as well as ensuring that delegated
yourlegislation
answer.is reviewed, this ensures that Parliament remains representative of the people’ s views and values and responsible for
the laws that are made.
2007, Question 10 (6 marks)
Question 10
Marks
0
1
2
3
4
5
6
Average
18
5
9
14
19
20
15
%
3.3
Students had a good knowledge of the key features of the adversarial process of dispute resolution. The most popular
feature discussed
was the
role of theof
judge.
Students
had a good
knowledge
the key features of the adversarial process of dispute resolution. The most
popular feature discussed was the role of the judge.
Many students argued that the jury is a key feature of the adversary system; however, this is not case – most cases are
determined
without
a jurythat
in our
resolution.
A few
studentssystem;
did not answer
the second
this – most
Many
students
argued
thesystem
jury isofadispute
key feature
of the
adversary
however,
this ispart
notofcase
question,
which
required
them
to
discuss
whether
the
adversary
system
would
be
improved
by
adopting
a
feature
of the the
cases are determined without a jury in our system of dispute resolution. A few students did not answer
inquisitorial
system.
It
is
important
for
students
to
read
questions
carefully
and
check
that
they
have
met
the
demands
of by
second part of this question, which required them to discuss whether the adversary system would be improved
the question.
adopting a feature of the inquisitorial system. It is important for students to read questions carefully and check
that they have met the demands of the question.
The following information could have been used to answer this question. The details of the inquisitorial system vary
from country to country, but the general features are outlined below.
The following information could have been used to answer this question. The details of the inquisitorial system
vary
fromofcountry
to country,
Features
the adversary
systembut the general features are outlined below.
•
The role of the parties: Each party is responsible for presenting their case. This means the parties decide which
Featuresfactual
of theand
adversary
system
legal issues
should be raised and what evidence should be presented to prove the alleged facts.
Through
process,
the system assumes that the stronger case will emerge, and that is likely to reveal what
 The
role this
of the
parties:
happened.
o Each party is responsible for presenting their case. This means the parties decide which
• The role offactual
the judge:
judge
is an should
impartial
ensures
the trialshould
is conducted
in accordance
withthe
andThe
legal
issues
bearbitrator,
raised and
whatthat
evidence
be presented
to prove
the rules of evidence and procedure and is not involved in the presentation of evidence or the crossalleged facts. Through this process, the system assumes that the stronger case will emerge, and
examination of witnesses.
that is likely to reveal what happened.
 The role of the judge:
Legal Studies GA 3 Exam
Published: 8 April 2008
5
9
2008
o ent
The judge is an impartial arbitrator, ensures that the trial is conducted in accordance with the
Assessm
rules of evidence and procedure and is not involved in the presentation of evidence or the crossReportexamination of witnesses.

Strict rules of evidence and procedure:
impeded by the doctrine. Unfortunately, many students simply listed the key points without explaining how they
Thesechange
ensurein that
only relevant and reliable evidence is presented; the same rules apply to each
contribute to o
or inhibit
the law.
party to ensure that the parties have the same opportunity to present their case. The trial is a
single continuous
event
based
The main points showing
that change is
possible
are:on the presentation of oral evidence which is subject to crossexamination.
• the courts can change a law quickly if a relevant case is brought before them
the doctrine
of burden
precedent
• Standard
and
of allows
proof:for some flexibility. The law can be expressed as a general principle (for
example, the ‘neighbour test’) allowing the courts to adapt the law to fit the circumstances before the court.
o The burden of proof is on the party making the allegation. The standard of proof is beyond
• courts can fill the gaps in the law by making a decision on a matter when it arises
reasonable doubt in a criminal case and on the balance of probabilities in a civil case. The party
• the law is prevented from being too rigid by distinguishing, overruling and reversing previous decisions
with the burden of proof wins the case if they are able to satisfy the standard of proof.
• judicial decisions are free from outside pressure
• The
need foroflegal
representation:
the doctrine
precedent
limits the possibility of prejudices or bias influencing judicial decisions
• the appeals
allows
review of decisions
o Theprocess
emphasis
onfor
thethe
presentation
of the case being in the hands of the parties means that there is
• if a partyahas
a valid
point regarding
the law,The
the complexity
appeal process
for the highest
court, the High
to
need
for legal
representation.
of allows
the evidence
and procedures
makeCourt,
it difficult
change the
as it istonot
bound
by any
precedent.to present their case without legal representation. Success
forlaw
a party
have
a full
opportunity
can be influenced greatly by the skill of the legal team.
The main points showing that change is inhibited by the doctrine are:
Features of the inquisitorial system
• courts may be bound by an old precedent, which could lead to unjust results
• The
more activeand
than
thebeadversary
and is involved in decisions about
somejudge
judgesisaremuch
very conservative
could
reluctant tosystem
change judge,
bad laws
evidence
is towhat
be presented,
the legal
issues
raisedbefore
at thethe
trial
and the examination of witnesses.
• which
courts cannot
determine
the law is unless
a case
is brought
court
•
•
•
changes in the law are ex poste facto
determining
the lawof
this
way
may in
be the
too expensive
for the
involved
The
involvement
the
judge
presentation
of parties
evidence
means that, in contrast to the adversary
judges are not
thenot
people
are notover
required
to reflect
changing piece
attitudes
values.is presented or a
system,
theelected
partiesbydo
haveand
control
whether
a particular
of and
evidence
particular witness is
called. The parties cannot prevent evidence being called which is damaging to
The following
is an example of a good answer. This answer presented a clear point of view in the introduction and used
their case.
the points to look critically at the capacity of the doctrine to allow for change in the law. The answer went on to discuss
The strict
rules
of and
evidence
procedure
do not
For example,
court can case,
consider
howthe doctrine
both
allows
restrictsand
change.
Examples,
suchapply.
as Menhennitt’s
rulingthe
in Davidson’s
were hearsay
evidence,
and evidence
gathered
the to
trial.
This sort of evidence is not subject to crossused in the
answer to illustrate
the way courts
havebefore
contributed
law-making.
examination.
The
of precedent
operates
on the of
principle
of stare decisis
(to stand
by The
what is
decided).
This principle
ensures until it is
 doctrine
The hearing
takes
the form
an enquiry
into the
truth.
court
conducts
the enquiry
consistency
and
predictability
but
fundamentally
works
against
courts
changing
the
law.
This
means
that
the
doctrine
does
satisfied that it has found the truth. Under the adversary system, the court’s function is not
to limit
find the
the courts as law-makers, however, there is no doubt that some of our most controversial areas of law have been made by the
truth,
but
to
determine
whether
the
party
with
the
stronger
case
has
met
the
standard
of
proof.
courts, thus showing that the doctrine of precedent does allow for change in the law.
The heart of the doctrine of precedent is the ‘ ratio decidendi’ , ***
or reason for the decision given by the judge in a superior court.
This ratio is binding on lower courts in the same hierarchy where the case being decided is so similar in facts that there can be
nouse
distinguishing
if the judgeand
does not
think
that thein
precedent
shouldcriminal
be followed.
This ensures
idea of being
‘ bound’
by previous
‘The
of the adversary
jury
systems
Victorian
trials
that
we have
an effective
decisions allows for consistency and reduces the likelihood of judges changing the law. However, judges who are bound by
legal
system.’
decisions
may still be able to change the law by distinguishing their case from the binding one. This allows a judge to make a
new precedent and thus allows for development or change in the area of law.
Discuss the above statement and indicate the extent to which you agree with it, giving reasons for your
QuestionInclude
11a.
answer.
in your answer an explanation of two elements of an effective legal system.
Question chosen
%
Marks
0
1
None
a.
b.
4
43
53
2
3
4
2008, Question 11a (10 marks)
5
6
7
8
9
10
Average
%
5.4
8
5
7
8
9
11
13
12
11
7
9
There were many excellent answers to this question and the structure of these responses was very pleasing. Students
generally
explained
the powers
divided andtothen
the difficulty
changinglegal
this division
An the
This
question
gavehow
students
the are
opportunity
usediscussed
two elements
of an ofeffective
systemoftopower.
discuss
area that requires
some further
work
is in ‘specific’
powers,
as students
neglected
to mention
specified
or
benefits
and weaknesses
of the
adversary
and jury
systems.
Onceoften
again
there were
some the
excellent
answers
that
enumerated
powers
of
s.
51.
used key knowledge to present a thorough point of view about the capacity of our adversary and jury systems to
contribute to an effective legal system.
Following are the key points to mention about the division of power.
Most students discussed the capacity of these systems to provide fair and unbiased hearings and the recognition
•
Specific or enumerated powers – all powers of the Commonwealth Parliament (most are listed in s. 51 of the
Constitution) and they can be:
o exclusive powers – law-making powers that are not shared with the states (s. 52)
10
of prevailing values and basic human rights. Some students discussed the merits of the inquisitorial system at
great length and their answer strayed from the major focus of the question. It is important that students make
good judgments about what material is relevant and do not simply use everything they know.
The following relevant points could have provided the basis for an answer to this question.
Adversary system
 The system is historical, tested over time and the community has confidence in the system.
 Individuals are responsible for the conduct of their own cases and control their own case, making it fair and
just.
 Rules of evidence and procedure are that both parties have equal footing.
 Those directly affected by the case bear the costs involved.
 As individuals are responsible for presenting the best case to support their point of view, all relevant
evidence will be presented.
 The judge is believed to be independent and impartial, thus people are treated fairly/the judge is considered
an independent umpire.
 The trial is heard in one continuous hearing so continuity of the hearing is ensured.
 Parties can have legal representation/legal aid.
 There is an emphasis on oral evidence and the examination of witnesses allows witness statements to be
tested to reach the truth and achieve a fair hearing.
 There are rules of evidence which aim to exclude unreliable or irrelevant evidence (for example, hearsay,
illegally obtained evidence, prior convictions).
 The parties are in charge of the presentation of the case, including gathering evidence, presentation and
cross- examination in court, arguing legal points and addressing the jury. Accordingly, the success of the
case can depend on the skills of a party’s legal team, particularly the advocate in court. If one party is not as
well- represented as the other it will be at a disadvantage and this will introduce an element of unfairness.




Good legal representation is expensive and funds for legal aid are limited, particularly where minor offences
are involved.
An unrepresented party is at a considerable disadvantage.
As the parties control the presentation of the case, one party might chose not to present relevant evidence, or
not to raise particular legal issues, because it would be damaging for that party’s case. This is in contrast
with the inquisitorial system, where the judge can initiate the calling of evidence and the raising of issues.
The adversarial system aims to determine which party has the stronger case. However, for all the above
reasons, it might not discover the truth.
Jury system
 Decisions reflect the views of the common person/community.
 Juries are independent and impartial.
 Juries are a cross-section of the community and reflect prevailing community attitudes.
 The jury system ensures that the law/the system remains intelligible to the ordinary person and involves the
community.
 Decision-making is spread across a number of people.
 There is less likelihood of a wrong decision being handed down.
 The system provides a trial which is free from political interference.
 Juries can act as a social conscience.
 The system ensures that the hearing of evidence is conducted in an open forum.
11
2010
Assessm
The jury system
ent has stood the ‘test of time’ and has historical significance.
 Jury
deliberations are kept secret and reasons do not have to be given.
Report

Juries may not be a true cross-section of the community, as people are able to be excused for a good reason
Points that
have beenof
made
aboutpeople
whether
jury system
be retained, depending on the stance taken by
andcould
the inclusion
certain
onthe
a jury
can beshould
challenged.
the student, included:
 A jury can add to the cost and length of a trial.
• jury decisions reflect the views of the common person/community
 •There
is doubt
as to whether
juries understand, and recall, evidence that can be complex and technical.
juries
are independent
and impartial
juries
arebe
a cross-section
of the
community
andthose
reflect
prevailing
community
attitudes rhetoric of counsel).
 •Jurors
may
influenced by
facts
other than
put
before them
(for example,
• ensures laws/the legal system remains intelligible to the ordinary person and involves the community
 Juries have been criticised because of their high acquittal rate.
• decision making is spread across a number of people
 •Juries
often
difficulty
reaching
a decision,
evendown
though majority verdicts have been introduced in
there
is lesshave
likelihood
of a wrong
decision
being handed
all cases
murder
treason.
•Victoria
providesin
a trial
whichbut
is free
from and
political
interference
• juries can act as a social conscience
ensures is
thean
hearing
of evidence
is conducted
in an
open
forumwent on to explain how the adversary and jury
The •following
example
of a better
answer.
The
answer
•
it
has
stood
the
‘test
of
time’
and
has
historical
significance
systems contribute to the reflection of values and rights. It also discussed the extent to which this was prevented
• jury
deliberations
are kept
secretbiases
and reasons
for their
decision dofor
notlegal
have to
be given
by things
such
as a jury’s
inherent
and the
requirement
counsel
to successfully navigate the
• juries
may not be a true cross-section of the community as people are able to be challenged and excused for a
adversarial
processes.
good reason
• a jury can add to the cost and length of a trial
The adversary system and jury system in Victorian criminal trials generally do contribute to an effective legal
• do juries understand, and recall, evidence that can be complex and technical?
system by allowing for fair and unbiased hearings and reflecting prevailing values and basic human rights.
• jurors may be influenced by things other than the facts before them; for example, the rhetoric of counsel
However, there are some aspects of each of these systems that reduce their capacity to achieve these elements of
• juries have been criticised because of their high acquittal rate
an effective
legal system.
• difficulty reaching a decision, even though majority verdicts have been introduced in Victoria in all cases bar
murder and treason.
The adversary system allows for fair and unbiased hearings by ensuring that the adjudicator or judge is an
impartial
third
party
who was
doesgenerally
not participate
collection
or presentation
evidence.
The first part
of this
question
well donein
bythe
many
students. Students
needed toof
make
a coupleParties
of pointscall their
own
regulated
rules
of evidence
andthe
procedure,
and each
has
equal The
opportunity to
aboutevidence,
the jury’s role
in orderby
to strict
gain full
marks,
including that
jury deliberates
on theparty
guilt of
thean
accused.
second part
students whether
or nottheir
they case
supported
juries in Victoria
– whetherjudge
they thought
present
the asked
best evidence
to support
and the retention
verdict isofdecided
by an impartial
or a group of 12
juries should stay
and forofwhat
It waswho
evident
thatupsome
students
did not knowthe
the complexity
meaning of ‘retention’,
independent
members
thereasons.
community
make
a jury.
Unfortunately,
of the strict rules of
thinking
it
meant
to
abolish
juries.
Weaker
students
seemed
to
use
pre-prepared
answers
and
beganThis
discussing
evidence and procedure mean that legal counsel is required to understand these rules.
meanspossible
that it is very
reforms or to
alternatives
to the
system,
whichprevent
was notsome
what the
question
No access
marks were
awarded
for
expensive
take a case
tojury
court
and may
people
fromasked.
having
to this
fair method
of dispute
discussions about reforms or alternatives to the jury system.
resolution.
It is important that students organise their responses well. Responses to this question should have included a paragraph
about the role of the criminal jury, followed by a statement as***
to whether or not the student supported the retention of
A
Supreme
Court Justice
recently
declared
that the
adversary
of the
trial
shouldorno
longerofbe used in
juries,
then a paragraph
for each
of their reasons.
Students
could
have eithersystem
supported
retention
abolition
Victoria.
juries. Many students stated that they supported the retention of juries but acknowledged some of its weaknesses; this
was appropriate as long as the question was answered and detailed reasons were provided.
Critically evaluate the use of the adversary system of trial. In your answer describe one possible
Question 11 to the adversary system.
improvement
Question chosen
%
Marks
%
0
10
none
a.
b.
4
53
43
1
6
2
8
3
8
4
10
2010, Question 11 (10 marks)
5
10
6
11
7
11
8
10
9
8
10
8
Average
5.1
The following points could have been made about the adversary system of trial.
Question 11a.
The following points could have been made about parliament as a law-maker.
Strengths of the adversary system
Strengths
of parliament
 The
system is historical, tested over time and the community has confidence in the system.
• can investigate the whole topic and make a comprehensive set of laws
 Individuals are responsible for the conduct of their own cases/control their own case – fair and just.
• has access to expert information and is therefore better able to keep up with changes in society
• Rules
of an
evidence
procedure – both parties have equal footing.
provides
arena forand
debate
can delegate
its power
to make
law
to expert
bodies
• Those
directly
affected
by the
case
bear the
costs involved.
• is able to involve the public in law-making
 As individuals are responsible for presenting the best case to support their point of view, all relevant
• can change the law as the need arises
evidence will be presented.
•
•
can make law in future
is democratically elected.
Weaknesses of parliament
12





There is the belief that the judge is independent and impartial, thus people treated fairly/independent
umpire.
The trial is heard in one continuing hearing, so continuity of the hearing is ensured.
Parties can have legal representation/legal aid.
There is an emphasis on oral evidence and the examination of witnesses allows witness statements to be
tested to reach the truth and achieve a fair hearing.
Standard and burden of proof – an accused is considered innocent until proven guilty in a criminal trial.
Weaknesses of the adversary system
 The parties are in charge of presentation of the case, including gathering evidence, presentation and
cross- examination in court, arguing legal points and their address to the jury. Accordingly, the
success of the case can depend to a good deal on the skills of a party’s legal team, particularly the
advocate in court. Where one side is not as well represented as the other, that party will be at a
disadvantage, and this will introduce an element of unfairness.
 Good legal representation is expensive, and funds for legal aid are limited, particularly where minor
offences are involved.
 An unrepresented party is at a considerable disadvantage.
 As control of the presentation of the case is in the hands of the parties, one party might chose not to
present relevant evidence, or not to raise particular legal issues, because it would be damaging for that
party’s case. Contrast with the inquisitorial system where the judge can initiate the calling of evidence
and the raising of issues.
 The adversarial system aims to determine which party has the stronger case. However, for all of the
reasons listed above, it might not discover the truth.
Possible improvements to the adversary system of trial include:
 increased judicial involvement in proceedings
 simplification of the rules of evidence and procedure, generally or with specific examples
 encouragement of alternative methods of dispute resolution
 greater control over legal costs
 increased availability of legal aid to facilitate improved access to legal representation
 increased spending on the legal system (for example, more courts and judges).
It was evident that many students need to work on their skills of critically evaluating and practise this skill in
examination conditions in the classroom. A critical evaluation required a detailed consideration of strengths and
weaknesses, with a conclusion as to the value or worth of the adversary legal system.
Stronger students provided a good description of the strengths and weaknesses of the adversary system, coming
to a conclusion as to whether it is a good or bad system or whether it needs improvement. The possible
improvement was better addressed after a weakness was described or at the end of the answer.
Other strong students used each of the five features of the adversary system to begin their paragraphs and
discussed strengths and weaknesses of each. It was not necessary to give detail of the strengths and weaknesses
of all of the five features to gain full marks; however, the more successful responses discussed at least three of
these features.
Weaker students saw this as a question about a comparison with the inquisitorial system. Although the
inquisitorial system could have been used in a discussion about the weaknesses or improvements to the
adversary system, it was not necessary to score high marks.
For the improvement, students needed to explain how that recommendation or suggestion would improve the
adversary system; this could be done by explaining how it would address a certain weakness or perhaps how it
13
may achieve one of the elements of an effective legal system. Some weaker responses incorrectly referred to
the jury system or pre-trial procedures, such as committal hearings, as features of the adversary system of trial.
Features of the adversary system of trial are described in the study design.
The following is an example of a good beginning to a response.
There are five features of the adversary system of trial, and each of these features have both strengths and
weaknesses. One of the strengths of the role of the parties is the total control given to the parties to run their
case. That means that the parties decide which evidence they are to call and how they will run their case,
therefore ensuring they take responsibility of the case. However, this can lend itself to being a weakness as it
means they can exclude certain witnesses from trial, or some unrepresented parties may not have a good handle
of their case, thus causing the possibility of there not being a fair hearing.
The passive and impartial role of the judge is a strength because it ensures he or she is unbiased and does not
take any sides, acting as a referee only and ensuring rules of evidence and procedure are followed. This,
however, could be a weakness as the judge is the most experienced and specialised person in the trial room
which is unutilised and hinders the possibility of a fairer trial should one party be on less of an equal footing
than another party. One improvement that could be made to the adversary system is to increase the role of the
judge in pre-trial procedures such as directions hearings. Judges could provide more guidance to parties about
evidence to lead or law to be considered, thus ensuring a more fair outcome is achieved and that parties can be
prepared for trial on a more equal footing.
***
Discuss the extent to which the adversary system achieves one of the elements of an effective legal system.
In your answer, compare two features of the adversary system with the inquisitorial system.
2013, Question 13 (10 marks)
There were two parts to this question. The first asked for a discussion about the extent to which the adversary
system achieved one of the elements of an effective legal system. The second asked for a comparison of two
features of the adversary system with the inquisitorial system.
Many students did not correctly identify the features of the adversary system. The jury system and the court
hierarchy, for example, are not features of that system. The features of the adversary system are: the role of the
judge, the role of the parties, the need for legal representation, the burden and standard of proof, and the rules of
evidence and procedure.
Many responses were too vague about either the adversary system or the inquisitorial system. For example, there
seems to be an incorrect assumption that the inquisitorial system maintains the principle that an accused is
‘guilty until proven innocent’. This is not correct. Furthermore, many students argued that the judge’s role in the
inquisitorial system is far greater than what it is, suggesting that the judge becomes involved and active in every
case (in most cases, the judge is not involved in investigations, which are largely conducted by law-enforcement
agencies).
High-scoring responses used appropriate features to address whether or not the chosen element of an effective
legal system was achieved, following through with a consideration of the similarities and differences of those
two features with the inquisitorial system. Weaker students merely listed and described the five features without
14
any discussion or comparison.
The number of points that a student could have made is extensive and depends on the element chosen. Therefore,
not all points are addressed here. The following are some of the more popular points that were made.



fair and unbiased hearing
o party control – ensures fairness by allowing parties to direct the conduct of the case, not the judge;
however, this means that some evidence may not be led or less weight is given to certain evidence
o rules of evidence and procedure – ensures both parties are subjected to the same rules; however,
often, the rules of evidence and procedure are strict, disallowing evidence that may be helpful, thus
impacting on the fairness of an outcome not necessarily decided by consideration of all evidence
o role of the judge – independent and unbiased, issues of bias can be appealed
o legal representation – often, the outcome may depend on the experience or credibility of legal
representation, which may be seen as unfair
access to the legal system
o legal representation – all parties have an equal right to legal representation and some can get access
to legal aid; however, some parties cannot afford legal representation or may only be able to afford
legal representation that is less experienced than another party’s
o role of the judge – at any time, the judge can direct the parties to attend mediation, which can help
reduce costs and time; however, the judge is unable to get involved in the case, therefore limiting a
person’s access to the judge’s expertise
o rules of evidence and procedure – ensures that each party has a right to present the case; however,
due to the complexity of the rules, it limits a person’s ability, particularly an unrepresented person,
to effectively access the system
timely resolution
o role of the judge – the judge can make directions and orders during the course of the trial and during
o pre-trial proceedings, which reduces the time it takes for a case to be heard – note in particular the
enhanced powers of the judge by virtue of the Civil Procedure Act 2010 (Vic.); however, the judge’s
broad powers may not be used and the judge may take a more traditional, passive role in the case,
thus increasing the length of the trial
o legal representation – the use of legal representation can reduce the time taken to explain procedures
and/or rules to unrepresented parties
o parties can choose which witnesses to call and what evidence to rely on, which can reduce the time it
takes for a hearing to take place; however, the reliance on oral evidence increases the time it takes
for a matter to be heard and, also, as parties have control over what evidence to call, this could delay
the trial if the evidence is extensive
The more common comparison points used were those regarding the role of the judge, the role of the parties and
the involvement of legal representation. Features of the inquisitorial system that could have been used as a point
of comparison include the following.
 The role of the parties is greatly reduced given the role of the judge.
 Often, the parties are not required to attend court in civil proceedings.
 The parties are required to respond to the court’s directions.
 The judge in this system has a far greater role than in the adversary system and can investigate and question
witnesses.
 The examining judge does not sit on the trial court (in some systems, the trial court is held in a similar
manner to the adversary trial).
 Similar to the adversary system, the legal practitioner can question witnesses.
 Rules of evidence and procedure are not as strict as those in the adversary system.
 There is an extensive use of written evidence and witnesses are free to tell their story.
15

The judge will determine whether the evidence is relevant and reliable (similar to the adversary system).
16