Australian adversarial criminal justice system - Essay Example

?Running head: CRIMINAL JUSTICE SYSTEM When all is said and done, the current criminal justice system is about as fair and effective as we can reasonably expect When all is said and done, the current criminal justice system is about as fair and effective as we can reasonably expect Introduction The criminal justice system in any country is one of the most difficult systems and processes to implement. It is difficult to implement because of the nature of the crimes themselves and because of the human elements involved in the criminal justice system. Just as humans are likely to commit errors of judgment, the criminal justice system, run by humans is likely to suffer such errors in judgment. These errors of judgment translate to guilty criminals going unpunished or being unapprehended, and to innocent individuals being sent to jail for crimes they did not commit. The terms “getting off on a technicality” are terms heard often enough when the legal provisions of the criminal justice system serve to protect the rights of all individuals, even those who are guilty. And yet these provisions are in place to protect the rights of the innocent and to afford due process of law. For which reason, most people remark and are resigned to the fact that when all is said and done the criminal justice system is about as fair and effective as we can reasonably expect. It is a statement which speaks of the need to “make do” because things “could have been worse.” It is important however to evaluate the difference and decide where the above statement indeed deserves the people’s resigned acceptance. This paper shall now consider the above statement and its merits in the actual criminal justice system. It shall consider the viability of the statement while assessing the strengths and weaknesses of the current Australian criminal justice system. This paper is being carried out in order to establish a clear and comprehensive understanding of the Australian criminal justice system in terms of its actual application and efficacy. Discussion Description of the adversarial criminal system The Australian criminal justice system is basically an adversarial system where there are two opposing parties to an issue or a case, and there is an independent person who considers the dispute and ensures that all rules and laws are complied with (Victoria University, n.d). The best argument in this adversarial system is used to decide on the case. The parties have control over their case and the presentation of evidence in their favour. They also have freedom to use legal representation if they so desire (Stacy, 1999). The parties also decide if there is a need for a jury in a civil case. The judge’s role in this adversarial system is to ensure that the case proceedings are impartial and fair. He has to make his decision based on his independent decision and he must oversee the proceedings in order to ensure that the rules of court are followed. In effect, while a jury rules over issues of fact, the judge decides over issues of law (Victoria University, n.d). In this adversarial system, there is a need to secure the rules of evidence and procedure. Each court has its rules which are meant to ensure fair and equal treatment of adversarial parties. It also ensures that the jury is not distracted by unnecessary materials and evidence; that unreliable and unfairly obtained evidence is not admitted in the court proceedings; and that evidence which is purely of character nature is not allowed to be entered in evidence (Victoria University, n.d). This adversarial system protects the strict rules of evidence and procedure where hearsay evidence, irrelevant evidence, opinion evidence, evidence illegally obtained, and prior convictions, as well as evidence reflecting bad character is not admissible in evidence (Victoria University, n.d). In this system, the burden of proof lies with the plaintiff or the party initiating the case. It requires proof beyond reasonable doubt for criminal cases, and balance of probabilities for civil cases (Millane, 2006). Disadvantages of the Australian adversarial criminal system Various issues about the implementation of the adversarial system in Australia have been pointed out. In relation to the role of the parties, where each party is responsible in presenting his own case, such a practice may lead to a party omitting unfavourable evidence, causing the actual truth to never really be found (Langbein, 2003). Since the parties have more control over what they present as evidence, the evidence presented can be chosen carefully to conceal the actual truth and to present instead their version of the truth – a truth one which supports their position as accused or victim in the case. In some instances, since the parties are also responsible for presenting their own case, the trial process can end up being a battle of who can spend the most money and recruit the best and most skilled personnel (Langbein, 2003). Delays may also be seen with the parties having control of their case. In considering the role of the judge as an overseer and as an ‘umpire’ for the jury, it is unfortunate to note how the judge who has significant legal expertise is relegated to a role where his expertise is hardly utilized (Victoria University, n.d). Moreover, in handling jurors who are slow in understanding the proceedings, time is often wasted because of the need to have to explain to the jurors the proceedings. This can eventually cause delays during the trial. As for legal representation, where the parties have the right to avail of legal representation, the outcome of the case may be based more on who had the best counsel, not on who was able to present the most convincing evidence (Louis, 2006). The proceedings then become focused on the manner of defence and procedural undertaking, not on the quality of evidence presented. It is also impossible to expect trials to run in one continuous sequence because of the unforeseen and foreseen delays which may be experienced during the court proceedings. The burden and standard of proof in adversarial proceedings can involve issues with parties having control over proceedings. Such control can develop more animosity against each other, lead to higher cost of legal counsel, as well as delays during proceedings (Victoria University, n.d). The complicated rules of evidence can also cause delays in the court proceedings. And with various technical processes in place, the need to hire counsel is more imperative. Witnesses in these proceedings are only allowed to say what is questioned of them and they may also be intimidated into saying something misleading during their testimony (French and Wettstein, 2008). Expert witnesses may also be unnecessarily relied on, and this is dangerous to the process of criminal justice because it prevents secure criminal processes from being established. In effect, not all of the truth or evidence may be revealed and the whole truth may not actually be reached. Specifically, in the adversarial system, there is a need for a court officer to establish what is the issue seen in a case. And this is made worse by the fact that the system “makes indicating rights financially unachievable” (Law Reform Commission of Western Australia, n.d, p. 21). It is also unfortunate how legal procedures seem to create a significant amount of paperwork and how they seem to increase cost for the courts. The process of time-consuming court processes are also laid at the feet of lawyers because the adversarial system can often go down to two lawyers colluding with each other for outcomes which would be favourable for them, but which hardly give any regard to the actual contending parties – the victims and the accused (French and Wettstein, 2008). This practice interferes in the fair administration of justice. Advantages of the Australian adversarial criminal justice system The Australian adversarial system can still be deemed fair and effective, despite the issues about its implementation which have risen throughout the years. When all is said and done, it is as fair as can be reasonably expected. There are various arguments taken on this topic. First and foremost, as for the role of the parties in the adversarial system, it is fortunate to note that each party is given the chance to present his case; that each party has the chance to uncover his truth; and to present his case based on such truth (Beaton-Wells, 2003). This is very much based on one’s democratic right to defend himself from lies, and eventually to fight for one’s own battles. The right to present one’s case before the courts is important because it allows a person to present his case in an effective way. It will also give him a chance to establish his guilt or innocence (University of South Africa, 2010). The right to present one’s case involves all court proceedings, especially proceedings where he seeks facts. This right is part of the principle audi alteram partem principle or “hear the other side” which is a crucial element of a fair and equitable trial (University of South Africa, 2010). The concept of fair and adversarial processes calls for the accused to be given the chance to challenge and question the witnesses against him, and to present witnesses for his benefit. The right to present one’s own case is subject to the principle of equality of arms, and this principle seeks to guarantee both sides the right to present and prove their cases and positions on the case (University of South Africa, 2010). This process is advantageous in the sense that it does not give the court the chance to favour one party over the other. It is also important to note the role of the judge in this adversarial system. In this system, the judges’ knowledge and expertise can be put to better use because the rules of evidence and procedure are secured and followed. With the judge’s involvement, a fair and unbiased decision can be secured and the public can be more confident about the decision he is likely to make. In the adversarial system, the verdict of the jury is more acceptable because the jury is made up of ordinary members of the community, and they are less likely to be biased in the case proceedings as compared to the sitting judge. The adversarial system is also advantageous in terms of legal representation which is upheld in this system and where parties can freely choose the best type of representation which they can afford. During the trial, the proceedings run in one long continuous sequence (Victoria University, n.d). This helps secure the continuity of the processes. Moreover, evidence is easy to follow during continuous trials. As a result of continuous trials, justice is dispensed with easily. In reviewing the burden of proof, the adversarial system is given a chance to present evidence for their defence. They are also given the chance to seek legal counsel and to make their case in the best possible way (Parker, 2002). They are also able to decide which cases can be brought in evidence in their favour. As for the rule of evidence and procedure, all parties are given equal and fair treatment, even subject to the same restrictions and laws. They are given the right to cross and rebut evidence, and even to test the sincerity of the parties appearing as witnesses. They are all treated alike regardless of the side of the criminal accusatory continuum they may be found. Any criminal justice system contains various flaws and is subject to human errors. There are however ways whereby these flaws can be limited or controlled. The adversarial system of Australia contains various fixed and standard provisions and practices which helps ensure that the victims are able to express their concerns and to seek justice for the crime committed against them. The criminal process in the adversarial system is simpler than the inquisitorial system. It follows a simple process which starts off with relatively serious crimes investigated by the police, followed by proper charges on the accused. A committal proceeding follows before the magistrate, and if the magistrate commits the case for trial, the trial is carried out in a Supreme of District Court, before a judge and a jury (Jackson, 2007). Prosecution is carried out in behalf of the Crown, aided by counsel retained by the Director of Prosecutions. Charges laid must be supported by evidence. The powers of the judge are limited to procedures and questions of the law (Jackson, 2007). The rest of the proceedings follow with both parties presenting their evidence. The final determination of the issue shall be in the hands of the jury. Sentencing shall then be made by the judge. There is much benefit which can be gained from the adversarial system because even with its imperfections and loopholes, it basically fulfils its task of establishing the truth and securing the rights of the parties involved. In the end, the presence of some adjudicatory system in any territory is important. In Australia, the presence of the system, one which is securing party rights is the bottomline. Moreover, it is the system which has been traditionally used in Australia and is benefitting the social institutions where it is being implemented. And if the proper and adequate benefits can be gained from the existing system then the system should stand on its own as it is (Australian Law Reform Commission, 1999). The adversarial system is also an effective system within Australia because opposing parties have the freedom to “isolate certain issues of contention” (Law Reform Commission of Western Australia, n.d, p. 21). In effect, the parties have the right to establish and define the issues which are in dispute and the court’s role is to make a determination on these issues based on law. This adversarial system is also the best way of establishing truths. With all the layers of untruths which can sometimes exist in the criminal justice system, the fact that the adversarial system can help re-establish the truth is an important advantage gained from such a system. It is a system which “respects individual autonomy, it harnesses the power of self-interest on each side to unearth the best evidence and the truth is best discovered by powerful statements on both sides of the question” (Law Reform Commission of Western Australia, n.d., p. 21). Conclusion The above discussion indicates that when all is said and done, the current criminal justice system is about as fair and effective as we can reasonably expect. There are apparent issues with the implementation of this adversarial system, most especially attributed to the control given to the parties on the conduct of the proceedings. Such issues are however overshadowed by the benefits or advantages gained from the adversarial system. Any system has its flaws, and in the Australian adversarial system, such flaws are indeed very much apparent. However, these flaws cannot overshadow the benefits of control given to the parties. There is a significant amount of benefit seen in allowing the parties to present their case, in allowing them to control the proceedings, and the direction of their defence or their prosecution. It is, after all, their truth which seeks presentation and acceptance among the jurors and the judge. Regardless of the various truths which would surface during the court proceedings, it is the accused and the victim’s truth which matters the most, therefore allowing them to control the proceedings and the presentation of their case is crucial to the establishment of the most viable truth. By allowing both parties equal reign and freedom in presenting their ‘truth,’ the jurors can decide, based on merits and evidence, which truth they would likely appreciate. Reference Australian Law Reform Commission (1999). Discussion Paper 62: Review of the Federal Civil Justice System. Retrieved 09 August 2011 from http://www.austlii.edu.au/au/other/alrc/publications/dp/62/ch2.html#Heading6 Beaton-Wells, C. (2003). Proof of antitrust markets in Australia. New South Wales: Federation Press. French, P. & Wettstein, H. (2008). Truth and its deformities. Sydney: John Wiley and Sons. Jackson, D. (2007). Adversarial and Inquisitorial Systems. Medico-Legal Society of NSW. 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New South Wales: Federation Press. University of South Africa. (2010). Chapter 10 The right to present one’s case. Retrieved 09 August 2011 from http://uir.unisa.ac.za/bitstream/handle/10500/1840/10chapter10.pdf Victoria University (n.d). The adversary system. Retrieved 09 August 2011 from http://www.business.tafe.vu.edu.au/.../THE+ADVERSARY+SYSTEM+SUMMARY.doc Works Cited Read More