Comparison of the Adversary system and the Inquisitorial system

1. Comparison of the Adversary system and the Inquisitorial system

2. The use of the inquisitorial system in Australia • We use the Adversary system of trial. • HOWEVER, the Coroner’s Court, Family Court, Children’s Cases Program, some tribunals and some alternative methods of disputes resolution are more inquisitorial. • Consider the role of a mediator or conciliator, they help the party reach a decision and are actively involved. • Think of another example...

3. The role of the judge • Case conducted before and independent & IMPARTIAL adjudicator • Judge decides q’s of law and procedure • Judge can ask q’s ONLY to clarify points in examination • Judge takes an ACTIVE role in the case • Judge determines which evidence/witnesses need examined • Judge q’s witnesses

4. Role of the parties • Parties are responsible for the preparation and presentation of their case • Parties determine the witnesses to be called and evidence they want to use • The role varies because parties are responding to the directions given by the court

5. Role of the legal representative • To represent the interest of their client • To prepare and present their client’s case to the court • To assist the judge in determining issues that require investigating

6. Rules of evidence • STRICT rules of evidence • Strong reliance on oral evidence • Parties collect and present the best evidence for their case • Previous character cannot be introduced until guilt determined • Greater dependence on documents as a form of evidence which are collected by judge • Witnesses are free to describe events rather than answer q’s • Prior convictions heard

7. Single trial • Conducted as a single hearing • More adjournments for further investigation as required by the court

8. In a nutshell – • The decision maker in the inquisitorial system takes a more ACTIVE role • Witness called for by the judge therefore hopefully less biased • Heavier reliance on written documents • Less reliance on legal representation • Cost of the inquisitorial is relatively cheaper than the Adversary system

9. Consider... • Consider which system you think is better. Are there elements of the Inquisitorial system we can adopt to make our system better? Or, should we just make improvement to the Adversary system?