The Main Disadvantages of An Adversarial System
The Adversarial system in NSW has several major
disadvantages such that have also being criticised by the media and public
figures. One of the most prominent disadvantages is the use of a jury system.
The jury is a major component of the adversarial system that separates it from
the inquisitorial system. It is supposed to be impartial and a representative
of our community. However this is not always the case. Even though the
selection process is supposed to be random, the lawyers on either side are
allowed to “select” their preferred jury by dismissing jurors who may not be
sympathetic or incline towards their side and keeping those that may be more
inclined to their side. This combined with the majority of population having
prior work commitments – therefore a large portion of our jury would either be
unemployed or elderly – the idea that our jury is a cross section of our
society is not entirely correct. This means that the values, beliefs and
judgments of our society are not being passed along and thus, the trial would
not be fair.
Adversarial trials are also very expensive and
time-consuming. This is because of the price associated with firstly, keeping
the court open and secondly to pay for the jury, legal aid and the judges,
clerk and other officials needed. Not only are costs expensive in the
adversarial system but the length of the trial are often long. Juries need to
deliberate for hours, days or even months on end for the judgement of guilt. If
juries cannot come to a decision, there will be new jurors and the case will
repeat until a verdict is determined. This can be very expensive and time
consuming. This expense and length can be seen in such trials as the 2009
terrorism case in Sydney that tried 5 Sydney men was reported to have exceeded
$9 million and to have been one of the longest criminal trials in Australia’s
and NSW’s history, lasting for over 18 months. This is only one of numerous
court cases that have lasted for around the same length – the cause being
indecision by jurors.
Another issue that has been raised publicly is that
of those who are disadvantaged. The adversarial system relies on the idea of
each party in the case to find and collect their own resources such as evidence
and legal knowledge. However, those of lower socio-economic status, or are of a
different cultural background or speak less fluent English or any other
disadvantage, will therefore have inadequate access to a fair and just legal
representation. They may not be able to pay for their desired lawyer and may
have to settle for less experienced or inadequate legal representation or none
at all. Therefore it pertains to the belief that with money come power and such
is so for the adversarial system in NSW. Other systems like the inquisitorial
system have the state bearing all the cost as there is an absence of lawyers,
making it easier for the parties involved. Furthermore, it insinuates that a better
lawyer means a more likely chance of winning, meaning that justice may not be
passed and the judgement may not be fair.
In addition, the passing of justice may be ignored,
simply because the adversary system is based on “winners” and “losers”. Lawyers
may be more determined to win than to pass on fair and just trial. Lawyers will
only provide the evidence that benefits their own arguments, meaning that there
is an absence of justice and that not all of the knowledge of the case is
present. Juries may not be able to pass an adequate judgement of guilt as they
do not have all the information present at their fingertips.
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