Comparative Criminal Law Paper - Norway V Australia

Rules of Evidence:

How does the Norwegian legal system differ with the Australian legal system when the rules of admissible evidence in criminal trials are examined?

14th April 2008

Contents

1.0 Introduction 3

1.1 Terminology_________________________________________________

___________3

2.0 Rules of Evidence in Norway______________________________________________4

2.1 Main rule: all evidence is allowed in the court room___________________________4

2.1.1 The law_________________________________________________________

_______4

2.1.2 Role of the judge_______________________________________________________

__4

2.2 Exceptions to the main rule________________________________________________5

2.3 Case law_________________________________________________________

_______6

2.4 The power of the judges___________________________________________________7

3.0 Rules of Evidence in Australia______________________________________________8

3.1 Main rule: strict rules of evidence ___________________________________________8

3.1.1 Emphasis on protecting the accused____________________________________________9

3.2 Problems with and critics of Australian Evidentiary Laws_______________________10

4.0 Conclusion__________________________________________________

_____________12

5.0 Bibliography________________________________________________

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1.0 Introduction

The adversarial and the inquisitorial system are two different systems of law. While the adversarial system is generally adopted in common law countries, the inquisitorial system is usually found on the continent of Europe among civil law systems. An example of a country with an adversarial system is Australia, whilst the criminal system in Norway has many features of an inquisitorial system.

In both the adversarial and inquisitorial criminal justice systems, the State determines whether or not an offence is criminal and the applicable sentences for offenders. The primary purpose of both systems is to enforce retribution and both also share the same goal for criminal process and procedure: to ensure a fair, unbiased procedure by balancing the rights of the individual with those of society as a whole.

However, there are quite a few differences between the two systems. One of the key differences between the two systems is found in their rules of evidence.

Which evidence can be presented in court?

We will first examine general rules of evidence in Norway and its application before investigating the Australian system, its differences to the inquisitorial system and its advantages and disadvantages. A comparison of these two systems occurs throughout the paper and a conclusion will be formulated discussing whether one system is wholly better than other in practical application.

1.1 Terminology

Comparisons between the institutions and processes of the two systems can be problematic because terms and expressions within Norwegian and Australian law can refer to different things. To define the research question is therefore of high importance. In this paper we are examining the rules of evidence of Norway and Australia which govern what is permissible in court during a criminal trial according to the relevant legislation of each nation.

By "rules of evidence" we are referring to the use of testimony (e.g., oral or written statements) and exhibits, (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by judges or a jury) in a criminal judicial proceeding.

We are focusing on the rules regarding what evidence can be presented in a criminal court trial.

2.0 Rules of evidence in Norway

In an inquisitorial system such as Norway, rules of evidence are less strict than those in an adversarial country such as Australia. In Australia, the evidence must conform to a number of rules and restrictions to be admissible and there is not one uniform law for the entirety of the nation. As we are about to see, this is opposite to the main rule in Norway.

Common law rules of evidence are founded on a concern that juries will misuse, or give inappropriate weight to unreliable evidence. In inquisitorial systems, rules of evidence are not as strict because legal professionals are considered capable of identifying reliable evidence . Rules of evidence therefore tend to be kept to a minimum. Courts are expected to decide for themselves which evidence is necessary to find the truth. However, Norway has a system where laymen can make decisions in cooperation with professional judges in the lower courts. Depending on the gravity of the case, some of the decisions are even made by a jury on its own. Even so, the main rule is that all evidence can be presented in court.

2.1.1 Main rule: all evidence is allowed in the court room

In Norway, it is up to the judges to pass sentences. When the court is trying to figure out whether the defendant has done what he is charged for or not, they have to evaluate the evidence that is presented in court. Types of evidence can be witness explanations, the defendant's explanation and technical evidence like for example finger prints, hair traces and so on . In Australia, the rules of evidence are strict. This is not the case in the Norwegian criminal system, where the main rule is that all evidence can be presented in the court. This principle is based on judicial theory and case law where the court has reiterated this principle many times.

2.1.2