Ethics, Law, and Medical Practice

By Kerry J. Breen; Vernon D. Plueckhahn et al. | Go to book overview

19
COURT PROCEDURES, EXPERT EVIDENCE AND MEDICO-LEGAL EXAMINATIONS

Legal proceedings in Australia are adversarial. The adversary system also prevails in most other countries where the legal system was derived from Great Britain. Trials, whether criminal or civil, in the adversary system are effectively contests between opposing parties, with a judge acting as the umpire, deciding on points of law and procedure, and giving legal directions to the jury, which alone decides the issues of fact. In civil trials without a jury, the judge decides both issues of law and fact. In the adversary system the burden of winning the contest usually rests upon the party who initiates the proceedings. In a criminal case it is the Crown in the guise of either the Director of Public Prosecutions or the police who brings the case against an accused person, while in a civil case it is the plaintiff who brings an action against a defendant.

The adversary system is in contradistinction to the inquisitorial system practised in most European countries where the legal systems are derived from Roman law. In this system it is the judge who plays by far the most prominent part in the eliciting of evidence. Expert witnesses are appointed by the court, and examined first by the court and then if desired by counsel for the accused. In contrast to the adversary system, where no accused person in criminal proceedings can be compelled to give evidence, a criminal trial in a French Superior Court commences with a formal interrogation of the accused by the presiding judge. The judges in the inquisitorial system usually come from a background based in the public service, rather than from practising barristers as is usually the case in the adversary system.


THE ADVERSARY SYSTEM

In this system the conduct of the litigation until the point of trial is, with some exceptions, left largely in the hands of the opposing parties. The trial

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