Australian Adversary System Essay

2172 words - 9 pages

Since the English arrival in Australia they brought with them a system of criminal trial that they used in their criminal courts. This system is called the Adversarial system, it has been subject to criticism by many people in the legal field, legal commentators and ordinary citizens who are simply interested in law and its procedure in Australia.This essay will discuss that the current system in place is a second rate system when it is compared to the European Inquisitorial criminal court system.There are four discussions that will be raised in this essay. The first discussion will describe the current situation in Australia.The second discussion will look at the criticism of the current Adversarial system.The third discussion will look at why adopting the Inquisitorial system in Australia would be a good choice to make.And the fourth and final discussion will compare the two systems, looking at the various participants and their roles in each of the systems.Australia has inherited its current criminal court system, the Adversarial Model from the English legal system, through the arrival of the first settlers bringing the English law with them and applying it to the new colony at the time of their arrival.Butterworths Australian Criminal law Dictionary describes the Adversary system as, The common law system of trial which requires one party, usually the plaintiff or the prosecution, to collect and produce evidence to the a Judge to prove a cause of action or charge against another party. The Adversarial system requires the other party, usually the defendant or the accused, to refute or defend only the allegation made by the plaintiff or the prosecution to have the cause of action or charge dismissed. The Adversarial system is contrasted with the Inquisitorial or Civil law system used in many European countries.This Adversarial system was developed in England as a variation to the Inquisitorial system early in the 13th century.The main difference in these two systems is what each one sets out to achieve.The Adversary system, which was inherited in Australia, "seeks to determine the guilt or innocence of the accused after hearing the prosecution and defence debate the relevant issues."By contrast the Inquisitorial system sets out to seek "the truth of the matter at hand by direct interrogation of witnesses brought before the tribunal." (Bryett, Craswell, Harrison, Shaw 1993)The Adversarial approach as having two parties being permitted to present their own case as vigorously as they can. He also states that since the parties are acting in their own interests, they are most likely to find the evidence, law and arguments that will advance their particular perspective. (Steinecke, 2006)The second discussion will look at the criticism of the current system.The Adversary system has been criticised by many people in the legal profession.It was at a church conference in Rome in 1215 where they agreed to end trial by ordeal, and switch to a truth based...

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