An Analysis Of The Adversarial System Of Australia

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Criminal Justice systems come in all forms, some of which may appear foreign to those not familiar with the system itself. Becoming familiar with any criminal justice system can become somewhat of a struggle considering all the changes and developments that have been made over decades to try and perfect the system. The Australian adversarial system is no different when it comes to its early beginnings during the colonial period. Today’s adversarial system is made up of several important ideologies, some of which include, Fair trials, The Transparency of Open Courts, and The Presumption of Innocence. These three components along with several others are what have allowed the criminal justice system to flourish and grow beyond its original form. The first key feature of the Australian adversarial system is known as the right to a fair trial. This is an essential feature of the adversarial system that is important so that one may be treated fairly and has equal protection under the law. In order to have a fair trial occur it relies heavily on certain components such as people and the roles they play during a trial. In order to have a fair trial a Judge is needed to make an impartial decision, when necessary, considering there are several forms of judges and when they are needed differs. Similar to a Judge, Jurors, are individuals who make up a Jury and ultimately decide guilt or innocence.

Based on the article “Passive Observers or Active Participants? Jurors in Civil and Criminal Trials”, written by Niamh Howlin, he speaks of the colonial period and how the Jurors were local folk who were familiar with the person being accused, and they often decided guilt or innocence based on their own knowledge of the accused, but also took into account evidence. With that being said, the role of jurors has come a long way. During the Early decades of the adversarial system, a jury consisted of 5 military officers, and later changed to 7 military officers. Although they were military officials, most of the officials had little to no knowledge of the law. The criminal justice system quickly began to see changes among the jury matters. Between 1824 and1828 the law changed and there was a choice of having either military juries or civilian juries, although the civilian juries had to be made up of civilians who were of a wealthy background and had never been convicted. Shortly after, the NSW Constitution Act abolished civilian juries. In 1833, a new way of juries was introduced, regardless of the opposition it faced it quickly took action. The new act would allow a jury of 12 civilians or 7 military officers, all of whom had to be male and aged 21-60, along with being of British descent, and fall under a certain socio- economic status. In 1839, military jury panels were abolished completely. Another important role in a fair trial is the prosecutor. The prosecutor carries the burden of proof and tries to prove the accused guilty. A prosecutor presents the case to the public, and links evidence they have found to the elements of a crime which in turn incriminate the accused. The prosecutor also calls upon witnesses and may be allowed to cross examine the accused or the defense’s witnesses. The accused plays a major role in the fair trial process; the fair trial process begins at arraignment when the accused pleads guilty or not guilty. Since the accused has the right to remain silent, for most of the trial the accused will just instruct the defense counsel, unless he/she decides to be questioned and cross examined. Thedefense Counsel historically advised wealthy settlers and gave legal advice to governors, now thedefense is seen as someone who is acting in the best interest of the accused by challenging the prosecution and objecting to matters brought on to incriminate the accused . A common way that thedefense does this is by allowing witnesses, who are people used as evidence because they have testified to something ruling in favor of thedefense and using concrete evidence to be presented during the trial that best represents the accused’s side of things. Based on the article titled, “Defending the Accused: The Impact of Legal Representation on Criminal Trial Outcomes in Victoria, Australia 1861-1961”, and written by Alana Piper and Mark Finnane, the emergence of thedefense lawyer was highly beneficial to the accused during trial , being that they would assist with other matters such as pleas, bail, and sentencing and everything that came along with understanding these concepts. While this success was not true for all cases it was clear to see that the transformation of what the defense lawyer used to be in colonial times compared to how the role is now has grown positively. Another key feature of today’s adversarial system is the Transparency of Open Courts. Having open courts means allowing the public to view and develop their own opinions on trials and different cases. It also allows the public insight on what their rights are, because many civilians are unaware of how the criminal justice system operates including one’s own rights. During open trial cases people are allowed to sit in on the courtroom and observe and learn the manner in which all the courtroom characters interact with one another and the true roles these people have, along with the difference each one can make when presenting at an open trial.

In an article titled “Open Justice versus Justice” written by Garth Nettheim, he discusses the importance of the open courts, saying that we take for “granted” the system of open justice, and while the openness of the courts is important the most important thing to remember is that there is justice still needed throughout our criminal justice system. While it is fortunate that the adversarial system allows for the open court system, the publicity that some cases receive may cause for some concern surrounding the biases that may be brought upon by different forms of media. Because of implications like these , and because the awareness that the open courts bring us, the public is informed if a trial has been relocated to a different venue. Some reasons for a change of venue are that the trial has received too much publicity, and in turn raises the risk of having an unfair trial. This has to do with the fact that since the open court system allows some media coverage, some cases are turned into publicity scandals which is why Nettheim discussed the need for justice above all, because justice is the main concept that the criminal justice system is trying to achieve.

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Another way in which the open court system benefits the criminal justice system is through the transparency that is shown when dealing with plea negotiations. Plea Bargains are common among the Victorian criminal Justice system considering they have several benefits. Some of the benefits include speeding up the process as a whole because through these negotiations, assurance of the accused being convicted of some sort of offence is guaranteed, and this also allows the system to work at an efficient pace. Plea negotiations became common in the late 1800s, and by the 1900s almost half of those accused agreed to a plea negotiation because they did not want to risk getting the longest term for their crime, going through the whole trial process, or possibly receiving capital punishment. With plea negotiations it was often seen as a simpler and more straightforward approach when it came to trials and sentencing. The transparency of the open courts has evolved, and that is due to the liberty the public has when it comes to trials and information concerning them. Without the transparency of open justice component of our system it would be difficult for the criminal justice system to evolve. Not having any insight on the system from regular civilians would not help the system expand or grow, because in today’s day and age, civilians are given a platform to which may be used to see and understand the criminal justice system in a new light that may be beneficial to others. One of the last key features of the adversarial system is The Presumption of Innocence, or otherwise known as “innocent until proven guilty”. The presumption of innocence in the criminal justice system is the idea that if one is accused of a crime, they do not have to prove they are innocent, instead it is the job of the prosecution and up to them to prove that the accused is guilty based on evidence, and it guarantees that until the prosecution has proved guilty beyond a reasonable doubt, the accused is, presumed innocent. In a passage titled “Presumption of Innocence” and written by John Seiff, he talks about how some may think a conviction of the accused might solve a “mystery” but that is no reason for finding the accused guilty. The truth is in the facts, and the presumption of innocence protects us from this happening. Even though it has been this way for a while now, it was not always this way. The presumption of innocence is an important piece of common law, which began during the colonial period.

This concept is one of the ones that is most frequently heard of among civilians. Most people are familiar with this concept because it goes completely against some of the earlier forms of deciding whether one was guilty or not. Because of the adversarial system and its belief in the presumption of innocence, when presented in court, the defendant or accused should not be dressed or handled in a manner by officials that suggests they are dangerous criminals. This right figuratively allows the accused an equal opportunity to undergo a fair trial without being perceived as guilty, prior to reaching a verdict.

In summation, the adversarial system of Australia has several important key components that have evolved and transformed in different ways all for the same reason, to reach an equal form of law that provides protection and gives one the liberty to have opinions and own understandings of rule and order. In essence, the adaptation that the system has undergone has made the Australian adversarial system what it is today. Without the discoveries of laws during the colonial period, and the changes that came after, the criminal justice system might not be how it is today and people might not have been granted the liberties, or have equal protection under the law at all. It is important to acknowledge the growth that the system has had, because it was not built this way in one day. It is also essential to keep changing and adapting to new times and as society grows the criminal justice system must also seek to transform and reach a state of equality.

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