Comparison essay - The Adversary System - Year 12 …
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Inquisitorial System Vs Adversarial System Free Essays
"The experience of the few women who do seek justice after being raped is heartbreaking testament to the failure of the adversarial criminal law achieving convictions ?
Do you agree with this proposition? Justify your position.
Similar to many Western countries, Australia uses the adversary system in both criminal and civil cases. The standard of proof of the adversary system in criminal cases is "proof beyond reasonable doubt ?, and with a nation-wide rape conviction rate of one per cent, many important questions are being raised.
One of these issues stems from the rate of report of sexual offences to the police, which currently stands at approximately 15%. There are many reasons for this number being so low, the most worrying being "fear of legal system ? or at least a lack of faith in it, by victims. A Rape Crisis Hotline in Victoria receives 15,000 calls per year from distressed women who are victims of sexual assault. Most of them do not report their ordeal to the police for this exact reason; "the victims fear the system, the think it will just chew them up and spit them out with nothing to show for the whole nightmare ?. Other reasons cited by rape victims for not reporting attacks include "feeling ashamed ? and "being blamed or held responsible by the police or courts ?. On top of this, there is the very real knowledge that the chances of their attacker being convicted at a trial and punished for his crime (men still represent 93% of sex offenders) are only one in 100.
In NSW in 2000-01 of the approximate 3% of the sexual assaults that reached the Courts, 36% were acquitted and only 30% were convicted (12% of which were convicted on a lesser offence).
?Tracey' [not her real name],44, of Victoria, and was sexually molested by her father from the age of four up to the age of 15, at which point she moved out of home. ?Tracey' was also raped by her father in her early twenties. In 20
So what are the basic differences between the two systems, appreciating that there will be many differences of details even between countries running similar systems? In our adversarial system the prosecution accuses the defendant of certain specified crimes. The prosecution then has to prove the defendant guilty, of those charges, before a neutral judge or jury. The prosecution and the defence call their witnesses and examine them before the judge and any jury. The judge can ask questions but should only do so to clarify matters, not to investigate, argue or prove the case for him or herself. That is the lawyers' job. The lawyers, for prosecution and defence, will argue their best that the defendant did - or didn't do it. The assumption is that, by allowing the lawyers maximum freedom to find, present, assess and challenge the evidence, the truth is most likely to be found. Once the prosecution and defence have finished examining all the witnesses that they have called, and they have made a summary speech and argument, the judge or jury will make a decision. They must decide whether the prosecution has proved the defendant guilty, beyond reasonable doubt. If they have a doubt, and they consider that to be a reasonable doubt, they must acquit, must find the defendant 'not guilty.'
Definition of Adversary System in the Legal Dictionary ..
Notice that, within the adversarial system, the issue is whether the prosecution's charges are sufficiently proved. It is not, directly, about guilt or innocence! The court does not, as in an investigatory system, inquire into whether the defendant is guilty. It is only allowed to consider the specific charges. It does not find people innocent. It may declare someone 'not guilty,' but that simply means that, they have not been found guilty to the standard required. Defendants, who have been acquitted, may declare to the world that they have been proved innocent. But they are wrong. They may actually be innocent - we can never know - but being found not guilty, of the specified charges, is not the same as being proved innocent! Perhaps our criminal courts should inquire into innocence as well as guilt. Perhaps they should pronounce people innocent and not just that they have not been found guilty. But they do not and, under our system, cannot.