Criminal justice system in Australia - Essay Example

?Running head: CRIMINAL JUSTICE SYSTEM OF AUSTRALIA “When all is said and done, the current criminal justice system is about as fair and effective aswe can reasonably expect” (name) (school) (date) “When all is said and done, the current criminal justice system is about as fair and effective as we can reasonably expect” Introduction Every society has its own criminal justice system. Such justice system seeks to manage the peace and order in any society, ensuring that all its citizens are protected from harmful elements and that the appropriate due processes are available for parties in the redress of criminal grievances. There are various types of criminal justice systems – the adversarial and the inquisitorial are two of the systems more commonly used by various countries and territories. This paper shall focus on Australia and its adversarial system. It shall discuss the thesis: When all is said and done, the current criminal justice system is about as fair and equitable as we can reasonably expect. This paper is to be analysed based on the Australian justice system as it applies its adversarial system as a fair and equitable tool. Discussion The adversarial criminal system is a common law system of carrying out proceedings where the parties, not the judge, have the task of establishing the issues being disputed and of investigating and further advancing the proceedings (Law Reform Commission, 1999). In contrast, the inquisitorial system is the civil code system where the judge has an important responsibility. The term adversary implies “opposition.” The Australian criminal system clashes two sides against each other in order to establish their evidence and issues surrounding the criminal activity (Associated Content, 2006). The adversarial system is strongly linked with the common law traditions whereas the inquisitorial processes are associated with the civil law traditions. This system can be viewed with two adversaries who are referred by a judge. Schmalleger (2007) establishes that this system includes two sides, the prosecution and the defence pitted against each other and their issues are evaluated by the impartial judge. In theory, justice is served when the most effective side is able to convince the judge that his side is the right side (Schmalleger, 2007). The crucial consideration in this system is the fact that the most number of fair resolutions of crimes are likely to occur with both sides being allowed to argue cases effectively before a fair and impartial jury (Schmalleger, 2007). In effect, it is not up to the prosecution or the defence to establish the guilt of a party, it is up to an impartial party hearing the case. As a result, it can be easily deemed that advocates on either side, arguing their side of the issue before an impartial judge can be considered the best means of achieving justice in the criminal justice system (Schmalleger, 2007). In instances however, when the system is seen as a means of seeking fault in a crime, there must be a thorough awareness of the limitations of this system. When all is said and done, the Australian adversarial criminal justice system is about as fair and as effective as can be reasonably expected. The Australian criminal justice system is fair and effective because the main goal of an adversary system is to “prevent private justice by retribution” (Law Reform Commission, 2004, p. 24). The aim of this system is to secure procedural fairness within the society, a fairness which provides both sides of the issue a chance to express their side and be given equal protection by the system. The jury system has always been known as the linchpin of the system because in most of the cases, the judges play an active role, and the jury, a passive role (Associated Content, 2006). This is especially crucial for the defendants who are often defended by overworked and underskilled defenders (Associated Content, 2006). The judge plays an active role because the system has to depend on the ability of the advocates who are representing the contending parties. Within such system, the advocates must establish the truth and seek justice. The judge has the power to establish what he considers as trustworthy or irrelevant evidence in the case and therefore he can give the jury a chance to review only the relevant and helpful evidence. The adversarial system of Australia is a reasonably fair and equitable system. The main goal of any criminal justice system is to achieve a system which considers the rights of individuals while also protecting society’s desire to preserve the peaceful coexistence of the citizens. This can be seen in both the civil and the common law systems (Law Reform Commission, 1999). In order to secure such goals, there must be a balance between the rights of individuals and that of the state to prosecute individuals who violate the laws. From the very beginning, the system must also reflect the goals of the society. In the Australian justice system, the adversarial system seems to reflect the goals for the criminal justice system – that of allowing individuals to express their position the criminal issue they have found themselves in. The adversarial Australian criminal justice system has comprehensive laws and processes which rule the admissibility of evidence presented before the judge (Nagorka, Stanton, and Wilson, 2005). There are often lengthy discourses and appeals to the higher courts regarding the court’s decision; these appeals seek to determine the flawed appreciation of evidence which should have rendered such evidence inadmissible. The defence has a right to block or refuse the presentation of evidence against him which is inadmissible or flawed (Nettle, 2004). The inquisitorial system does not have definite rules which involve the admissibility of evidence. All testimonies presented to the court are presented at the judge’s discretion and the jury is left to discriminate such evidence (King, 2010). The withholding of evidence in an adversarial system is an important concern among victims since the evidence indicates strong support for the victim’s contention. The wait for final resolution can represent a long period of uncertainty. Nevertheless, such long wait is still very much essential to the appropriate and the fair and equitable application of justice. During criminal trials, the truth is supposed to be established from the presentation of evidence by the prosecution and defence before a neutral party. The role of the judge and jury is considered to be passive (Newson and Aldous, 2005). In the adversarial system, the parties are the ones which prosecute and direct the trial process. They also decide the scope of the trial process and the extent of the evidence presented before the courts. The system is oral and confrontational. Parties cross-examine the witnesses and in order to defend their position and to debunk the accuracy of their claims (Newson and Aldous, 2005). However, there are issues in this adversarial system, including the lack of judicial management during the pre-trial proceedings. As a result, delays in the justice system can often be seen. When considered in relation to oral evidence and exclusionary standards of evidence, these delays cause the selective presentation of evidence among witnesses whose recall of the events may already be adversely affected (Law Reform Commission, 2005). These factors combined do not necessarily cause the establishment of the true happenings. Discussions on the issue assert that trials are not inquiries into the truths of a contended issue, but it is concerned about whether or not the prosecution would be able to prove their stand on the issue beyond reasonable doubt. In order to reach such point, witnesses have to be called and evidence has to be presented and evaluated in relation to how much it impacts on the determination of the criminal case (Blackmore, n.d). In effect, the truth is not the overall goal of the adversarial system, but its goal is for either party to establish and present a strong case for its side of the issue. Attaining the truth in the end is more the function of the prosecutor, and for such truth to be reached, both parties must make an effort to make a strong case for his side of the criminal case. The adversarial system in Australia can be considered as fair and equitable because the judge has a direct involvement in the progress and investigation of the case; his involvement would help ensure that the decision in the case would be based on the merits of the facts and the contentions as presented to him by the contending parties (McEwan, 1992). In effect, the decision made in these cases is based on how and what the parties present to the judge and how the latter appreciates or evaluates the case or facts. A contest is considered fair when there is an unambiguous statement made by the parties; there are tools for the powerful and unmitigated presentation of the cases, based on legal provisions; and the decisions of the judge or jury are laid out in a general manner without any particular concern on the consequences of such decisions (Associated Content, 2006). While the state has the power to present a case against an individual, such a power is very much limited to the evidence gathered and the presentation of the case in court. The presentation of the case is carried out based on the guidelines laid out by the law. Such standards can apply in most cases and they set forth that the role of the prosecutor is to help the court in arriving at the truth of the events leading up to the case (Nagorka, et.al., 2005). Such a truth would help provide support for the concept of fairness and justice which is at the very core of the criminal justice system. This prosecutor also acts to protect the community and the general interests. In effect, the laws act as a force which would provide balance between the over eager or the inadequate application of the state resources against defendants. As the cases are decided by the judge, the latter has the power to ensure that evidence properly obtained would be allowed as evidence. If the state has gone beyond its limits and did not properly gain evidence, then such evidence cannot be admitted in the court (McEwan, 1992). Moreover, the judge has the power to reject evidence which would be highly prejudicial to the defendant. There are various factors which may move the trial judge in the practice of its discretion to reject or otherwise allow evidence (McEwan, 1992). He would be called on to refer to other decisions of judges wherein there has been rejected evidence or where the Court of Appeals has made specific rulings. The judge would also be influenced by the dominant beliefs on the quality of evidence, including the quality of the evidence gathered by the police officers. The judge is also called on to remind the jury to appreciate the evidence based on their strengths and weaknesses. The potential unreliability of evidence must be constantly reminded by the judge to the jury (Nagorka, et.al., 2005). Once a decision is reached by a jury, the defendant still has the right to appeal in instances when he loses the case. Such right cannot be shared with the state in instances of acquittal. In effect, it is incumbent upon the defendant to establish that justice has been miscarried and the verdict was unreliable in the light of evidence presented during the trial. The right of the defendant before trial; the power of the court to manage and control evidence; the instructions given to the jury on the legal admissibility of evidence; and the rights given to the defendant to appeal all express that the adversarial system is more than fair and equitable as it provides a balance on the right of the state to prosecute (Associated Content, 2006). Furthermore, even as the state has resources to prosecute the case, such resources must be used in every case; they can therefore be depleted. These factors tend to reduce the perception and real-time application of justice, as well as the maintenance of balance in favour of the state. This adversarial system has been considered a “battle” which seeks the establishment of truth (Newson and Aldous, 2005). The rules of evidence in this system helps ensure that both contending parties have equal rights and opportunities to present their side to the issue. Those who are affected by the case bear the costs and the community has to have the confidence that evidence will be presented on both sides and the evidence would be able to support their respective positions on the case. It is a system which has already withstood the test of time, and as such has already gained the confidence of the community in it. The main features of this system which is the impartiality of the judge and the burden of proof help support overall protection of individual rights (Newson and Aldous, 2005). The state supports the prosecution of the case and evidence gathered by the prosecution would help prove the state’s position on the issue. In order to reduce bias against the defendant, the burden of proof lies with the state, not with the defendant and the state’s failure to prove the defendant’s guilt beyond reasonable doubt would effectively negate the merits of the case in favour of the prosecution. In effect, it is important to note that there are weaknesses in the adversarial criminal system. It may happen that a defendant is not properly represented at some stages of the criminal justice system due to lack of legal assistance (Associated Content, 2006). Therefore, it is common for defendants to not be represented during summary hearings. Furthermore, there is generally no legal assistance immediately available for defendants during their arrests, making them highly vulnerable to wrongdoings by police officers and other law enforcement authorities. Although the police advises the defendant of his Miranda rights, the defendant may still feel disadvantaged by his vulnerable position and suddenly end up confessing for a crime he did not commit (Associated Content, 2006). Various defendants who are disadvantaged economically may offend find themselves in this type of scenario. During this time, it may be prudent to note that the criminal justice system is not being fair and equitable to these people. This system is also considered too costly and is vulnerable to delays (Newson and Aldous, 2005). There is minimal involvement of the judge in the conduct of the case as his role is to judge questions of law, not to establish questions of fact. Hiring lawyers can also be expensive and therefore those who cannot afford lawyers would be at a disadvantage under this system. However, it is important to note that the benefits of the adversarial system still outweigh the above limitations. In the end, the trial and the determination of the case is based on evidence presented and on how the case is presented by either party. Conclusion When all is said and done the Australian criminal justice system is as fair and equitable as we can reasonably expect it to be. The above discussion proves that the preceding statement is true. The end goal for any criminal justice system is to implement justice, to punish the guilty, and provide relief for the victims. This is adequately achieved in the Australian adversarial system. The contending parties have equal opportunities to present their position on the issue, and to present such before an impartial judge or a jury of their peers. It makes it possible for the contending parties to be heard and to prove that their truth is the actual truth. For the most part, this system depends on how well each side presents the evidence and the appropriateness and reliability of such evidence. With these aspects in place within the criminal justice system of Australia, it is possible to state with certainty that the criminal justice system in Australia is as reasonable and fair as can be expected. Works Cited Associated Content (2006). Criminal Justice System in Action: The Adversarial System. Retrieved 15 August 2011 from http://www.associatedcontent.com/article/31690/criminal_justice_system_in_action_the_pg5.html?cat=17 Blackmore, M. (n.d). Does the Common law system of criminal justice protect or infringe upon the rights of the defendant? Office of the Director of Public Prosecutions. Retrieved 15 August 2011 from http://www.odpp.nsw.gov.au/speeches/Final%20paper%20Capetown.htm Jackson, D. (2009). Adversarial and Inquisitorial Systems. Medico-Legal Society of NSW Inc. Retrieved 15 August 2011 from http://www.medicolegal.org.au/index2.php?option=com_content&do_pdf=1&id=184 King, V. (2010). Criminal Procedure in Non-Adversarial and Adversarial Systems of Justice viewed from the Victim’s Perspective. AIJA. Retrieved 15 August 2011 from http://www.aija.org.au/NAJ%202010/Papers/King%20V.pdf Law Reform Commission (2005). The Adversarial Criminal Justice System. Retrieved 15 August 2011 from http://www.lrc.justice.wa.gov.au/2publications/reports/P92-CJS/finalreport/ch7adverscrim.pdf Law Reform Commission (1999). Advantages and disadvantages of the adversarial system of criminal proceedings. Retrieved 15 August 2011 from http://www.lrc.justice.wa.gov.au/2publications/reports/P92-CJS/consults/1-3crimadvers.pdf Mc Ewan, J. (1992). Evidence and the Adversarial Process. Blackwell Publishers. U.K. Nagorka, F. Stanton, M. Wilson, M. (2005). Stranded Between Partisanship and The Truth? A Comparative Analysis of Legal Ethics in Adversarial and Inquisitorial Systems of Justice. Melbourne University Law Review. Nettle, G. (2004) Ethics – The Adversarial System and Business Practice. Speech presented to Melbourne University Law School on 3 November. Newson, L. & Aldous, J. (2005). The Legal Maze: VCE Units 1 and 2. New South Wales: MacMillan Education Aus. Schmalleger, F. (2007). Criminal justice today: an introductory text for the 21st century. 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