| Abstrakt: |
Many scholars have analysed the differences between criminal trials in common and civil law systems. The adversarial trial in England, Australia and elsewhere provides a contrast with the inquisitorial process found in continental Europe and other civil law countries. Legal history adds another dimension. The common law criminal trial was once less adversarial and more like the civil law model than is generally appreciated. Lawyers came late to the prosecution process: the accused was not permitted to be defended by counsel, and so it was rare for counsel to appear for the prosecution. This meant that the judge took the lead in questioning the accused and the witnesses. Counsel were finally permitted to appear in the early 18th century, and this was the key factor in the evolution of the modern adversarial trial. One of the elements in this story is that in England, for many years, prosecution was primarily carried out by lawyers in private practice. It was not until 1985 that the Crown Prosecution Service was established. It is here that the Australian experience has been rather different. In Australia, from the early days of settlement, public officers were appointed to undertake criminal prosecutions. In part, this was due to the special circumstances prevailing in the early years of colonial settlement, when very few lawyers were available. It was also due to difficulties with transplanting fundamental aspects of English criminal procedure such as the grand jury: in Western Australia, when the grand jury was abolished, the Advocate-General and the Crown Solicitor assumed full responsibility for prosecutions. The Western Australian experience also shows the extent to which English rules and practices were perpetuated or adapted in a small colony on the other side of the world. [ABSTRACT FROM AUTHOR] |
