Common to all criminal courts within Australia, our court system operates on an adversarial system. Within the court a prosecutor represents the crown and a defence representative represents an accused with both parties arguing their side of the case. Sworden (2006) identifies the adversarial system as a process which allows the truth of the matter to be determined. Using evidence, the opposing councils attempt to convince a jury their version of events is true. If the prosecutor convinces the jury “beyond a reasonable doubt” then the accused is found guilty of the crime. Inversely if the defence is able to raise reasonable doubt the accused is found not guilty.
The adversarial system in Australia includes five central features to support in the equality and justice of the system. The conduct of the litigation both prior to and during the trial is left substantially in the hands of the parties; Evidence is generally elicited by a procedure whereby each party in turn calls witnesses whom it questions and who are then cross-examined by the other party with a view to discrediting or casting doubt on the accuracy or relevance of their testimony; The role of the judge is to preside and to act as a form of umpire rather than to take any active part in the selection or questioning of witnesses; The judicial function is designed to be concentrated into one continuous hearing; and, Compliance with the rules of court is, in general, enforced only at the request of one of the parties.
Within Australian criminal courts there are five major stakeholders. These are identified as; the police: who initiate a prosecution by bring an accused before the court. In magistrate court matters the police also act as the prosecutor. The accused is the ...
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...alian adversarial system there is combating force from the government, courts and police to try and maintain these imbalances of power. .Money is often a shortage for most people especially when the high cost of courts is present. To control this imbalance of power the government has put into place a variety of assistance when it comes to criminal and civil cases. In Queensland, legal assistance in criminal matters is controlled by Legal Aid, a body corporate established under the Legal Aid Queensland Act 1997 [2]. Provision is made for legal assistance in the form of legal representation for specific criminal proceedings. Secondly, there are rules and regulations set in place to prohibit any imbalance of power of unjust influences between the two parties. The State is held just as accountable to follow the procedures and regulations as a defendant or prosecutor.
The conviction of guilty offenders when adhering to the guidelines of the NSW criminal trial process is not difficult based on the presumption of innocence. However, due to features of the criminal trial process, established by the adversarial system of trial, cases can often involve copious amounts of time and money, particularly evident in the case of R vs Rogerson and McNamara where factors such as time and money are demonstrated to be in excess. In addition, characteristics of the adversarial system such as plea bargaining has the power to hinder convictions due to the accused having the authority to hire experienced and expensive lawyers to argue their case, hence maintaining their innocence.
R N Howie and P A Johnson, Annotated Criminal Legislation NSW, 2011-2102, (Lexis Nexis Butterworths 2012) 17769-1774
Stohr, M. K, & P. Collins. (2009). Criminal Justice Management. Oxford, NY: Oxford University Press, Inc.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
The issue I have decided to analyse is that concerning the implications of bail and remand. Bail is an option a court must confront when temporarily releasing an accused individual until their expected appearance at an appointed time, before the determination of innocence or guilt is concluded. Several guarantees that secure the person’s appearance at an appointed time include a guarantor, bond assurance paid by a surety holder, summons or court attendance notice. Remand is the refusal of bail, when the accused is to be detained prior to there trial, remanded into custody until the hearing is resumed, or the trial commenced. Remand is given if there is an increased probability of the defendant committing another offense, failing to turn up to court, intimidating someone or obstructing the course of justice. The matter addressing bail and remand is that specific criteria for courts when determining bail is that they need to meet consistently high requirements and is extremely convoluted. The past decade has revealed that the proportion of remandees in NSW has doubled to the aggregated prisoner population, while prisoners remanded into custody has tripled.
344. The. Australian Institute of Criminology, [Online]. Available at: http://www.aic.gov.au/documents/0/C/5/%7B0C5DFDDF-7A72-43F9-80A1-CA6D51B635B6%7Dtandi344.pdf, [Accessed 14 April 2011].
Burstein, P. (2008). The Role of a Defence Counsel. In J. V. Roberts, & M. G. Grossman (Eds.), Criminal Justice in Canada: a Reader (3rd Edition ed., pp. 48-58). Toronto: Thomson Nelson.
Compare and contrast the arguments that have been advanced for and against the incorporation of Aboriginal and Torres Strait Islander Law in the criminal justice system.
The adversary system is able to reflect the moral and ethical standards of society through balancing the rights of all parties involved. The adversary system is a system of law where two opposing sides present their case to an impartial
They are the impartial third-party whose responsibility is to deliver a verdict for the accused based on the evidence presented during trial. They balance the rights of society to a great extent as members of the community are involved. This links the legal system with the community and ensures that the system is operating fairly and reflecting the standards and values of society. A trial by jury also ensures the victim’s rights to a fair trial. However, they do not balance the rights of the offender as they can be biased or not under. In the News.com.au article ‘Judge or jury? Your life depends on this decision’ (14 November 2013), Ian Lloyd, QC, revealed that “juries are swayed by many different factors.” These factors include race, ethnicity, physical appearance and religious beliefs. A recent study also found that juries are influenced by where the accused sits in the courtroom. They found that a jury is most likely to give a “guilty” verdict if the accused sits behind a glass dock (ABC News, 5 November 2014). Juries also tend to be influenced by their emotions; hence preventing them from having an objective view. According to the Sydney Morning Herald article ‘Court verdicts: More found innocent if no jury involved’ (23 November 2013), 55.4 per cent of defendants in judge-alone trials were acquitted of all charges compared with 29 per cent in jury trials between 1993 and 2011. Professor Mark Findlay from the University of Sydney said that this is because “judges were less likely to be guided by their emotions.” Juries balance the rights of victims and society to a great extent. However, they are ineffective in balancing the rights of the offender as juries can be biased which violate the offender’s rights to have a fair
The Queensland Drug Court system (CDP) aims at diverting offenders accused of minor drug offences from the criminal justice system (Department of Justice and Attorney-General, 2012). The program aims to rehabilitate drug offenders from abusing substances and conducting in related criminal activity by providing court enforced rehabilitation services (Australian Indigenous HealthInfoNet, 2015). The Queensland Drug Court system offers offenders the chance to earn themselves bail if they agree to get help, or face jail time and serious fines if they refuse (Emma Sykes 2013). Considering this aim it is unfortunate to observe that minor drug offences have continued to rise annually since 2009 (Queensland Police Services, 2015). In theory a court
The jury plays a crucial role in the courts of trial. They are an integral part in the Australian justice system. The jury system brings ordinary people into the courts everyday to judge whether a case is guilty or innocent. The role of the jury varies, depending on the different cases. In Australia, the court is ran by an adversary system. In this system “..individual litigants play a central part, initiating court action and largely determining the issues in dispute” (Ellis 2013, p. 133). In this essay I will be discussing the role of the jury system and how some believe the jury is one of the most important institutions in ensuring that Australia has an effective legal system, while others disagree. I will evaluate the advantages and disadvantages of a jury system.
...tood. This problem has persisted through many cases, clearly highlighting the lack of expertise of juries, and if they do not understand the process and basic rules, then they cannot be a reliable body in determining innocence. Jurors incapability of following evidence inevitably leads to guess work with jury’s finding defendants guilty because ‘he looked like he did it’ and ‘he looks like a nonce so he must of done it’. Moreover, cases have been reported of incredulous juries using absurd methods to ascertain a verdict, like in R v Young 1995, where a Ouija Board was used to determine if the defendant was guilty or not. It is clear that it would be better and far more effective to abolish the jury system, and leave the experts and qualified legal professionals to try defendants, as they understand the process and possess the expertise to make balanced decisions.
In conclusion, it is evident that whilst the criminal justice system sets out to be fair and just - due to the discretionary nature of processes involved – it is difficult to even get a case heard. This suggests that the criminal justice system is more effective as a means of social control than a means of ensuring justice.