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The effectiveness of our Adversary System is shown through the constant enforcement of Fairness, Justice and Equality. These are all put into action when a trial is under consideration for an offence whether it be Criminal or Civil.
In most cases the effect of the Adversary System is best felt through a criminal case where the prosecution depends on the evidence given by the police and the word of the witness/s.
As stated in ‘Criminal Laws’ [(David Brown, David Farrier and David Weisbrot) pg 177 b] ‘The police play a crucial role in the investigation process, a role which largely shapes the conduct of the prosecution’ this outlines the need that the prosecution holds for as much honest evidence as the police can provide… but it then goes on to state that ‘The most concerted attention has been given to the police fabrication of confessional evidence’ thus showing that in the adversarial system the judge and/or the jury come to a decision based upon the facts that the two opposing parties present.
For the prosecution to put forward an honest case and for the case outcome to be determined truthfully it is necessary that the police provide all the circumstantial evidence, if this is not the case then the Judge and jury decide the verdict based on false indirect evidence.
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The police providing evidence works as a positive and negative factor throughout the Adversarial System; Positive No evidence can be hidden from either parties therefore there being more of a chance that the truth be revealed.
Negative Evidence may be tampered with and/or hidden without either parties knowing, leaving a missing link in the case/s.
There are many other contributions to the effectiveness of the Adversarial System. Spending time in court I have learnt about our system in many ways. I have learnt that in some ways the our legal system is much better than the Inquisitorial as personal bias opinions of a judge in the conduct of a case are less overt as they have both sides of the case presented to them without knowing the plaintiff and/or defendant thus causing them to judge the case fairly. Upon our visit to the Downing centre with the school a court officer explained the roles of the jury to us; - They are in no way related or have no contact with the defendant prior to the case.
- Nothing from the case can be discussed with their spouse or any other person other than another juror that may only happen in the Jury room within the specific court hours.
These are just examples of the strict rules that must be followed, this showed to me that extreme precautions are taken to ensure that the defendant be given a fair trial. This emphasizes the consistency of our Legal system ensuring the positive effectiveness on society.
Although there are many positive factors to our legal systems there are also negative factors, this is outlined in an interview between Lynne Haultain, George William and Geoffrey Davies on the abc radio (http//www.abc.net.au/rn/talks/8.0/lawrpt/lstories/lr70715.htm) one of the main points is that the problem with determining the truth in this way is that it depends on;
1) The skill of the person arguing the cases A skilful loquacious person can make black seem white.
) Not all the evidence may be presented so that the side with the better presented evidence may seem right even if they are actually wrong when all the evidence is known.
This could have a huge effect on the system as it may have many loop holes which causes there to be a variable amount of inconsistency.
Geoffrey Davies Well there are several reasons one is that the costs of parties of average means are now so excessive that in the mid range cases, in say the District Court, the costs can exceed the amount involved. That to me is unfairness so far as the parties to a dispute is concerned. The second basis of unfairness I suppose is that in determining whats fair, I think one really has to look not only to the parties to a dispute, but also at those people waiting in line for their disputes to be heard, those people who are about to litigate and who may be deterred from litigation by the costs, and the public who, in the end, foot the bill. I dont really think the lawyers can be blamed for administering the system in the way in which they do, I think the system is a very adversarial system and I think a very adversarial system is a very time-consuming system. Its a very labour intensive system and consequently its a very costly system.
And then I think there needs to be a realisation among lawyers of the imperfections of our existing system and the ways in which it can be changed, and I think there need to be incentives to lawyers and litigants, to use less time consuming, less labour consuming means of dispute resolution.
Our system now is designed because of the huge labour intensiveness, to reach a high degree of accuracy
Litigation and other dispute resolution processes used in Australia blend adversarial and non-adversarial elements and processes and do not fall easily into any particular category of legal system or dispute resolution process definition.
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