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The Adversary Legal System In Australia

1217 words - 5 pages

As the name suggests, the adversary system in Australia refers to a method of trial, which involves contestants or adversaries, that is, it is an adversarial approach in attempting to resolve legal issues between two opposing sides. There are five features of the adversary system in Australia; contest; party control; strict rules of evidence and procedures; role of the judge or magistrate and single event trials. The strengths and weaknesses of the adversary system, which has evolved through out history are varied, and as a result the question of whether this system provides justice is often challenged.Unlike the inquisitorial system used in European countries, in the adversary system, the judges are not expected to conduct an investigation into the facts of the case to reach the truth. Instead adversary judges rely on the case presented by the two opposing sides. This contest between the two parties is based on the belief that a contest is more likely to bring out the best in the parties and make them strive to win. If both sides are trying their hardest the truth is most likely to be uncovered.The concept of party control is an important feature of the adversary system. Because magistrates or judges have a very passive role in adversary trials, the case is totally left in the hands of the two parties. Both parties have almost complete control over the decisions about how the case will be run, such as ?tactics? they will use to win the case, as long as the rules of evidence and procedure are followed. This is a strength of the adversary system because it allows the parties to feel that they are in control of the situation and responsible for the outcome. It also satisfies the competitive, or combative spirit. Someone who can fight their own battle would feel more satisfied with the result of the case. Party control is very important in criminal cases in that the accused does not depend on the state for their defence. In civil cases the two parties are able to settle their battle in court with little interference with the state.However, it can be said that because the adversary system is heavily based on two sides locked in battle, particularly in civil cases, it can lead to further animosity between the parties, instead of settling their differences in a friendly manner. As well as the social aspect, in civil cases, delays can be caused by the plaintiff to see if the defendant will decide to drop the case because of the cost of the proceedings.One of the main features of the adversary system of trial is the heavy reliance on very strict rules of evidence and procedures, which is presented to the ultimate decision makers of the case. These strict rules were developed to help and protect the jurors as they came to a decision; however, these strict rules apply even if there is no jury in a trial. Rules of evidence such as direct, hearsay, expert, circumstantial, oral, character evidence and procedure are aimed at ensuring fair and equal treatment....

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