“The first person to speak in court always seems right until his opponent begins to question him.”
We should hold onto this profound wisdom which is the foundation of the right to examine witnesses. It is found in the Good Book at Proverbs 18:17. The capacity to test evidence, probe assertions, and put forward counter propositions is the civilised, objective method by which we seek to find the truth. Perfect it is not, but it is still the fairest and the best route to truth – for the finding of facts, be it scientific or legal or the examination of history.
In a former life as a lawyer, this was often found to be the case.
Horrid allegations or strong emphatic denials made in the office collapsed under examination by prosecutors or opposing counsel.
Many examples spring to mind from criminal, civil, child protection, road accidents, and other areas of personal interactions which required a judicial determination.
That is why personally cross-examining clients in the office was conducted to test the assertions made and avoid wasting the court’s time and to provide a taste of what might be expected.
The right to examine an accuser is fundamental if justice is to prevail. Natural justice demands the right to defend oneself and test the accusations being made.
We need to protect this right for all of us, yet this cornerstone of our highly sophisticated judicial system is regrettably being eroded.
Too often in public discourse we hear the plea that to test the assertion would be to re-traumatise the victim. This is a real issue to which we must be sensitive, but to be fair we need to treat everyone the same. The accuser is not a victim nor the accused a perpetrator until the facts have been determined by an independent judicial body. Until such a determination is made, both accuser and accused must be treated with dignity and fairness.
The notion that we need to ‘believe the victim’ before their assertions are thoroughly tested does everyone a disservice. It suggests pre-judgement, bias, and favouritism.
Real life experience shows that accusers can tell untruths as can the accused – albeit it is more often that the accused is found wanting.
An unfortunate case which springs to mind relates to a woman’s allegations against a man. Without retelling the details, a robust cross-examination exposed the multiple flaws in her accusations and finally led to her acknowledging the falsity of her claims.
The mental anguish, alienation, and sheer hell the accused suffered prior to his name being cleared was indescribable.
The journey for the validated victim is undeniably similar. This is why both the accuser and the accused need to be treated equally with respect and fairness until the matter is resolved.
In recent times we have had commissions of inquiry or public pile-ons ruining peoples’ lives before the facts are actually established. Allowing people to tell unchallenged stories is not necessarily an exercise in truth-telling. It’s an exercise in storytelling – that’s all. Only after verification and testing can we value its validity.
Examples of the disservice of not testing evidence are the cases of Gunner and Cubillo. These two celebrated names were part of the “Bringing Them Home Report” which presented the two stories of indigenous people allegedly taken against parental will – the stolen generations. The cases, when actually tested in court, fell at the first hurdle with a wealth of documentary evidence contradicting what had been asserted.
Cases such as this then provide grist for the mill for those who would want to deny that there was any inappropriate placement of individuals by the authorities.
Testing recollections, seeking evidence which is contrary or provides an alternate perspective allows us to progress to the truth – be it in issues as diverse as interpersonal relations or science.
Those of us truly confident in our position should not be scared of having our view tested. If correct it galvanises our position. If found wanting the testing will hopefully help us modify our position.
Ultimately, genuine, fearless pursuit of truth does not care for an individual’s sensitivity or have regard to a person’s “offence” threshold.
Objective truth remains exactly that, objective truth. No amount of deplatforming, silencing, or oversensitivity can or will change the truth.
We need to cherish truth and the procedures by which we can objectively arrive at the truth.
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Senator Eric Abetz is one of the longest serving federal parliamentarians in Australia, representing Tasmania in the Liberal Party since early 1994. He emigrated to Australia from Germany with his family at a very young age, and his father worked alongside many other immigrants on the Tasmanian Hydro Schemes. He worked as a part-time taxi driver and farm hand while studying Arts and Law at the University of Tasmania, and has been a member of the Liberal Party since 1976.
His Parliamentary career is long and distinguished, and the full details can be read here.