"Justice should not only be done, but should manifestly and undoubtedly be seen to be done." - Lord Hewart

Authors Avatar

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

– Lord Hewart

“This is not about your client’s harsh upbringing, nor their life-story, this proceeding regards the law.”

– District Court Judge


The popularised image of courtroom dramas in no way prepared me for the everyday realities of our court system. Interestingly, glimpses of this over-dramatised form of the law appeared on occasions, through the conduct of enthusiastic prosecutors or dry magistrates. The marked separation in formality, conduct and atmosphere of each court was of more surprise than the variations in procedure. The local courts were characteristic of what might be called ‘assembly-line law’, where large numbers of cases were dealt with summarily, the magistrate often taking only minutes to move the accused on. The cases were simple and repetitive, it became difficult to see the participants as individuals, instead of yet another number to be dealt with. The complexity of the Supreme Court was very different, and the situation far more reflective of the discourse of justice and rationality that the law promotes. Whilst there is clear merit in the argument that different tiers of justice exist, it is generalist to argue it is the result of an insidious state ideology. Communication difficulties, unrepresented defendants, and uncompromising police were all prevalent. The local court magistrates did provide a glimmer of hope, they were for the most part quite prepared to step outside the formalistic model and facilitate a more egalitarian process.

The Realities of a Two Tier System – Personal Evaluation

It was instructive to view proceedings in the local courts against the background of what had occurred in the higher courts. McBarnet has persuasively argued that the modern legal system is characterised by a dichotomy in the way that justice and rationality operate in the higher and lower courts. This provided the conceptual framework for an examination of lower court proceedings. One of the central convictions of McBarnet’s argument is that the elements that constitute the rhetoric of justice, due process, representation, the rights of the accused were not in evidence in the local courts. With a dramatic increase in statutory law and clear emphasis on separation of powers doctrine a plausible legal explanation can be offered in explanation to society, if it chooses to inquire.   

Join now!

The majority of observation time was spent in the local courts. The mythical status that criminal proceedings had occupied from the safety of academia and television was quickly dispelled. The programmed ideology of strict procedural formality and adversarial counsel did not match the reality. Findlay’s assertion that at least 95% of criminal cases were heard in the lower courts certainly seemed to be borne out by the facts. In Redfer Local Court, there was a steady procession of minor drug offences that would almost inevitably end with the issuing of a 12-month good behaviour bond by the magistrate and a ...

This is a preview of the whole essay

Here's what a teacher thought of this essay


Well done. This is a thoroughly researched essay; one that shows a real mastery of the literature that comprises it. Closer attention to the specific language of the quotes would elevate the mark awarded. 4 Stars.