Australian Criminal court system

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The Australian court is based on the adversarial system. In this essay, the Australian criminal court system should be based on an adversarial system rather than an inquisitorial system.


Australia's adversary or adversarial system of law is inherited a common law legal system when it was colonized by Britain. Although the Australia's legal system is not purely adversarial nor wholly inquisitorial (Ellis, E. 2005). Non - adversarial features absorbed by our system include a more active role for judges in case management and an increased use of alternative processes. The Australian adversarial system has few jury trials in civil and commercial proceedings. Therefore judges, not jurors are handing down decisions and assessing damages (Ponte, L. 2000) The difference between adversarial system and the inquisitorial system is that the adversarial system of law is the system of law, generally adopted in common law countries, which relies on the skill of each advocate or lawyer representing his or her party's positions and involves a neutral person, such as the judge trying to determine the truth of the case.(Walpin, G., 2003) Where as the inquisitorial legal system is where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties


It is much easier to use the adversarial process, where the judge is expected to listen to what the opposing parties present to him by way of support of their respective positions and to pronounce the winner at that day. (Jolowicz, J. 2003) The adversarial process is commonly used around the world, throughout this system the judge may limit the time given to any specific case, and each party (limited to his own financial resources) must elect which of many investigatory paths to follow. But, the crucial difference lies in that the party and his attorney, knowing the case and motivated solely by what is in the client's best interests, make the strategic decision of what evidence to seek and present, given limited time and resources (Walpin, G., 2003) the adversarial system allows a sharp clash of proofs presented by adversaries during a fixed procedure of presenting evidence, and the adversaries have an opportunity to question each other's evidence. The result is that the neutral decision-maker has the information necessary to resolve the dispute in a manner that is acceptable to the parties and society; thus, justice is rendered


The disadvantages of the adversarial process is that the members of the jury in the trial will act as inquisitors ( Debarba, K. 2002). One of the most significant differences between the adversary system and the inquisitional system occurs when a criminal defendant admits to the crime. In an adversary system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution of her or his crime, a false confession will not be accepted even in common law courts. By contrast, in an inquisitional system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and a confession by the defendant does not remove the requirement that the prosecution present a full case. This allows for plea bargaining in adversary systems in a way that is difficult or impossible in inquisitional system, and many felony cases in the United States are handled without trial through such plea bargains. Another difference is in the rules of evidence. Because the adversarial system assumes that the evidence is to be presented to laymen rather than to jurists, the rules of evidence are considerably more strict. Rules on hearsay are much stricter in most adversarial systems than in inquisitorial systems; though often lower tribunals are allowed some flexibility in applying the strict rules of common law evidence such as in domestic relations courts or in small claims proceedings where the parties are often unrepresented by lawyers and the judge functions as more of an inquisitor to protect the interests of children than a neutral arbiter of justice. Critics of this system suggest that the ability of a party to obtain a favorable result may hinge more upon the quality of their lawyers than on the facts of the case. The system is also criticized for the lucrative advantages it appears to present to the lawyer. Although both civil and criminal defendants are generally permitted to represent themselves pro se, the complexity of the legal system means that the civil defendant is often forced to either pay whatever it takes to defend him, or enter into a settlement with the opposing party. parties in both systems rely on the luck of the draw to some extent. The odds of success in court are admittedly better for one with wealth than for one without. But in the non-adversarial procedure countries, the luck of the draw rests most importantly on the ability, knowledge, energy, and bias of the judge, which is totally outside the party's control.16 A party who does not approve of his lawyer can replace him-a party cannot replace the judge chosen for the parties. (Walpin, G., 2003) The adversarial system has also been attacked for failing to accurately resolve complex high-tech science and technology issues by technically-unqualified judges and juries, and this has led to proposals for a science-based legal system. In the proposed science-based system, all experts retained for matters of science and technology would be required to be totally neutral (retained by the courts instead of by opposing parties). Such a system has been proposed by many people in the criminal-justice system and engineering and scientific communities to eliminate hired guns and their junk science and slanted testimony and keep scientific fraud out of the courts.[3] Another argument set forth for the inquisitorial system is that it is more efficient to focus quickly on the weakness in one side's case, thereby leading to quick determinations. This efficiency is said to be in contrast to the adversarial system in which lawyers with a losing case waste time by proceeding forward. (Walpin, G., 2003) Adversarial system provides a procedure for focusing on one or more issues that would determine the dispute between the parties-a motion for summary judgment. In our adversarial system, this expeditious procedure does not rest on a judge's quick reaction to what he has heard, but on a procedure that guarantees both parties the right to delve into all relevant facts until no relevant, disputed fact remains.