THE PROBLEM....with the adversarial method is...

Smart lawyers do not care one iota as to innocence or guilt..they care about winning the case.

If they can do this by attacking valid but 'inadmissable' evidence.... due to a minor technicality...they will do it.

If they can spot a minor procedural error in police methods...they will try to use that to call for dropping the charges.

...and people wonder why Star Chambers emerge?

Examinator, I agree that the current system is far from ideal, and can produce injustice rather than justice.

I'd be interested in knowing what alternative ideas you have as to how it should be organised. It sounds like you are suggesting an approach which varies according to the type of case (correct me if I'm wrong). How would you decide what cases were suitable for what method of decision? Would there be broad categories, or would the decision be made on a case-by-case basis? Who would make that decision? Which cases would be jury cases and which would be judge alone cases?

"Smart lawyers do not care one iota as to innocence or guilt..they care about winning the case.

If they can do this by attacking valid but 'inadmissable' evidence.... due to a minor technicality...they will do it.

If they can spot a minor procedural error in police methods...they will try to use that to call for dropping the charges."

Any lawyer who did not take up a technicality would be derogating from his or her duty to the client. It's not only about winning the case, but also about doing your duty by the client, which means taking all the technical points. That being said, there is also a duty to the court, which means that you have to present those legal arguments which go against your side.

I share your frustration about cases which go awry because of technical rules. In such cases, it's difficult to feel that justice has been done. The argument is that justice is done in a broader sense because the technical rules prevent injustices from occurring to innocent accused. It's the old argument that it's better to let 100 guilty people go free than to imprison one innocent person. The problem is that if you make the law too technical and procedural, the public starts to lose faith in it, because it is no longer doing its job. It is a delicate balance.

It seems to me the question hinges on whether we have courts of law, or courts of justice.
Someone once said there are three forms of law; the law of God, the law of Nature, and the law of Man. Of the three, the law of Man is by far the basest law.
I believe the law (common or statute) should be the means. Justice should be the end.
By this I mean, the law should bring matters to the door of the court, but perhaps it should not enter.
The right to trial by jury of peers, is the strongest defence against a corrupt (or merely decadent) system.
Just as a lot of women hate going to a mechanic, a lot of people hate going to a lawyer; for precisely the same reason.
In a court of Justice, the only questions a jury has to address are,
is someone guilty of causing harm, and "how would I like it, if that happened to me?"
perhaps the jury should also have the right to decide whether time has been deliberately wasted, or whether counsel on either side deliberately tried to pervert natural justice.

I cannot imagine a system that would be better than one of Common Law as flawed as it is, other than making the law more accessible. Surely it is one of the great human rights - access to justice.

"I agree that reforms have to be made which make litigation more affordable for ordinary people."

This sentence resonates with me the most. A friend recently obtained advice from a lawyer and was billed nearly $1000 for 2.1 hours of work including phone calls (even one where my friend rang to thank the lawyer for his efforts). This works out to $400 per hour.

While acknowledging lawyers are professional people, these sorts of exhorbitant costs do limit access to justice for ordinary people who earn too much to qualify for legal aid but not enough to be able to afford legal representation. Is a lawyer really worth $400 an hour compared to other professionals? Even my GP only earns $240 per hour if you add up the cost and duration of consultations.

It is all well to say that lawyers don't collude over prices but like any market forces when there is a price creep and most lawyers jumping on board to imposing higher charges bracket, there is no real competition. Bit like bank fees, which bank do you choose when all of them are ripping off the customers?

How is a middle income earner to cope if they are charged with a crime they did not commit or sued by a malicious litigant. Even if they are proved innocent there are costs incurred. In a recent whistleblower court case, the defendant was found not guilty but had used most of his superannuation savings to pay for his legal defence. The price of freedom is indeed great.

Grim, I wonder how a system of trial by jury would be organised. A practical problem is that, in my experience, most people are not that willing to participate in a jury when they get called up. On my old blog, the post which consistently had the highest hits was entitled "Excuses for getting out of jury duty" - it must have been a disappointment for those searching, because it was simply a list of some of the crazy excuses people had used (eg, "my budgie is sick").

I definitely believe that the jury system has a place, but in some circumstances it would be difficult for it to work - eg, where a trial involves highly technical issues.

It's also more complicated than asking whether someone is guilty of causing harm. Harm is the main questions in a criminal trial or a negligence trial, and it is probably for that reasons that these cases tend to be heard by jury.

However, there may be cases where the questions are not so straightforward - eg, has there been a breach of the Corporations Act? The central question there is not harm to another, but contravention of a statute.