Law Council of Australia

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Inquisitorial and adversarial – more united than divided

Speech delivered by Dr Jacoba Brasch QC, President of the Law Council of Australia, at the 2021 Commonwealth Law Conference.
 


"Ultimately, whether we work under an inquisitorial or adversarial system we ought be united with the one common goal – to problem solve our client’s problems…and that does not always mean court is the right option.

In his “Practical Guide to Evidence,” legal scholar Peter Murphy gives an account of a frustrated judge in an English (adversarial) court asking a barrister, after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' The counsel’s reply came: ‘No, my lord, merely the evidence'.1 This anecdote aptly reflects the tension between the inquisitorial and adversarial systems as alternative projects of justice.

Similarly, I recently read an article from our law reform commission where in the author mused:

Lawyers and journalists love to debate the relative merits of the adversarial and inquisitorial systems of law. Like playing the English at cricket, the debate is enjoyed, but we do not respond well to evidence that the other might be a better side.2"

You can read the full speech below.

1 https://www.thestatesman.com/opinion/criminal-justice-system-trial-1502485060.html and https://www.amazon.com/Practical-Approach-Evidence/dp/1854310259
2 http://classic.austlii.edu.au/au/journals/ALRCRefJl/1999/15.html

Last Updated on 30/09/2021

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