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Failure Of The Australian Legal System To Provide True Justice

2711 words - 11 pages

Failure of the Australian Legal System to Provide True Justice

The Australian legal system uses the adversary system in solving legal
disputes. The adversary system is a judicial process where an
independent and impartial judge administers justice in courts and two
opposing parties present allegations and counter allegations regarding
a legal dispute placed before the court by one or both parties.
(B.Bash, 2001, Legal Studies Essentials, pg.164)

The adversary system has many basic features and are elaborated in the
following. First and foremost, the disputes take place before an
independent and impartial judge or judge and jury. (Brown & Bailey,
1997, Legal Studies, pg.173, para 8) The judge in the adversary system
has a passive role, meaning that they are independent from the
executive body and cannot simultaneously perform functions of the
Judicial and Executive or Legislative body. This is also an
enforcement of the Doctrine of Separation of Power. The judge is also
a person who has no personal interest in the outcome of the case.
Other than that, the judge also has the role of determining the
admissibility of evidence at a voir dire, oversee the empanelment of
jury, act as an adviser to the jury, and protecting the rights of the
witnesses, accused, and victims. (B.Bash, 2001, Legal Studies
Essentials, pg.165) The next feature of the adversary system is that
the parties have control over the case. (Brown & Bailey, 1997, Legal
Studies, pg.174, para 1) This is said in the sense that parties are
responsible in collecting evidence, calling witnesses, choosing their
lawyers, submissions and objections. It can be said that everything is
up to the parties before and during the trial and the judge is there
to ensure correct legal rules are followed. Another feature of the
adversary system is that it is a single continuous trial. (Brown &
Bailey, 1997, Legal Studies, pg.174, para 1) This means that once the
trial is started, it will not stop until a verdict is reached. Other
than that, in an adversary system, there are strict rules of evidence
and procedure. (B.Bash, 2001, Legal Studies Essentials, pg.165) This
means that only certain types of evidence are admissible in courts,
for example, direct evidence, and some others are not, such as hearsay
evidence. The next feature of the adversary system is that the use of
legal representatives is essential. This is mainly because in the
adversary system, the truth is said to be discovered through powerful
argument. The presumption of innocence until proven guilty is also
another feature of the adversary system. The accused has to be proven
guilty beyond reasonable doubt and anytime before that, he is
innocent, even considering the fact that he was charged and arrested.
That only simply means that the person has been accused of a crime.
...

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