Truth in Justice - Reform Adversarial Legal System to Inquisitorial System
The adversarial legal system that we inherited from another country has numerous mechanisms which conceal or defeat the truth, and procedures which unnecessarily prolong civil and criminal actions.
Results: in criminal matters more than half of the guilty escape justice, while at the same time it is estimated that between 1-3% of people convicted in Australia (or several thousand people every year) are in fact innocent (source: Prof. Paul Wilson, Bond University), and in civil cases hearings can take months or even years.
In properly run truth-seeking systems as in France and Germany, the innocent are rarely even charged due to a series of pre-trial filters, while 95% of those who are ultimately charged are convicted, and most civil hearings take less than a day.
Therefore change to a truth-seeking system will both greatly increase justice as well as reduce costs and thus taxes.
• The adversarial system operates on the basis that truth does not matter; it is the only system which suppresses evidence.
• Lawyers are allowed to control the evidence and spin the process out.
• Judges are former lawyers, with no training as judges.
• The investigative system used in Europe and other countries is more just because judges trained separately from lawyers search for the truth, and costs less because they have no motive to prolong the process
• Cost: The current system is very damaging to families, children and individuals, and can lead families into poverty including loss of the family home.
• Fairness: A fair society brings about social cohesion instead of an unfair society that creates social disintegration.
• Timeliness: A resolution of a disagreement in a timely manner reduces the emotional damage to families, children and individuals who have to utilise the legal system.
• The UK, whose legal system ours was inherited from, is already moving towards an inquisitorial system. (see article on barrister James Richardson in NZ’s LawFuel 16 Dec 2010)
• A conservative estimate of 280 innocent Australians have been wrongly convicted and are currently serving jail sentences (based upon 1% of the 2009 statistic which claimed 28,000 in our prisons, while estimates of wrongful convictions in Australia by Criminology Professor Paul Wilson are between 1-3%).
• The best Investigative legal systems have a series of pre-trial filters that ensure that the innocent are rarely charged, let alone convicted and imprisoned, whereas at least 280 wrongfully convicted innocent Australians are currently in prison (as well as those in remand awaiting trial), at great cost to both themselves and their families, as well as to society in general, the taxpayer and to the community’s faith in our justice system.
• In our predominantly Adversarial legal system serial rapists, known killers and organised criminals are released back onto the streets to re-offend – money buys their brand of justice.
• The lawyers who run the current system are able to be incompetent and utterly remiss in their defence of people, especially those with a low education or intellectual or psychiatric problems (i.e. the vulnerable), Australia being the only developed country where lawyers "enjoy complete immunity" from being held accountable for incompetent court work.
• Australia has no Criminal Cases Review system to overcome the inexplicable limitations and failings of the Appeals and High Courts, as Britain now has.
• Under the current system, the only winners in most civil matters are the lawyers.
For further evidence see:
Civil Litigation in New South Wales: Empirical and Analytical Comparisons with Germany by Annette Marfording, 2010
A Report on the Administration of Criminal Justice in the Pre-Trial phase in France and Germany by Professor Leonard Leigh and Lucia Zedner (Her Majesty’s Stationery Office, 1992)
‘Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)’ by Evan Whitton (Book Pal, 2009)
Earlier books by Mr Whitton are online at:
Dr Bob Moles site on miscarriages of justice:
If you like this petition you may also like two others I have started:
TO THE HONOURABLE PRESIDENT AND MEMBERS OF THE SENATE IN PARLIAMENT
We, the undersigned concerned citizens, petition the legislature to begin the process of changing to a truth-seeking (inquisitorial) legal system.
As Justice Russell Fox said, justice means fairness; fairness and morality require a search for the truth; and truth means reality, and further that “The public estimation must be correct, that justice marches with the truth.” Yet our adversary system does not try to find the truth: it has numerous anti-truth mechanisms, including six rules which conceal important evidence from jurors.
Civil and criminal trials take from weeks to over a year; at least 1% of the people in our prisons are innocent; fewer than 50% of defendants tried are convicted; while rapists, inside traders, price fixers and tax evaders are rarely convicted. Not surprisingly, a 2005 survey published in a paper given at the 2007 'Confidence in the Courts' conference found that 70% of Australians have little or no confidence in our courts or legal system.
In truth-seeking systems, as in France and Germany, the innocent are rarely charged, let alone convicted; 95% of those who are charged are convicted; while most civil and criminal trials take about a day. Annette Marfording's 2010 UNSW report 'Civil Litigation in New South Wales: Empirical and Analytical Comparisons with Germany' found that litigation costs are considerably higher in New South Wales than in Germany.
A truth-seeking system will thus be both much fairer and less costly. And the change is achievable - we already use the inquisitorial system to find the truth at inquests, Royal Commissions and standing commissions on corruption.
Victims of the current system include almost everyone: victims of crime, police, doctors, people in business and industry, journalists, families and children, and the community in general including the taxpayers who fund it. We thus believe that an informed public will support changing to a truth-seeking system, and therefore ask Parliament to implement such change.
The Truth in Justice - Reform Adversarial Legal System to Inquisitorial System petition to Parliament of Australia (Senate) was written by Mary Cotter and is in the category Justice at GoPetition.