TRUTH

One of the most difficult questions in justice is not deciding between truth and falsehood.

It is deciding between two truths.

Following my last newsletter, Elise, a contributor challenged me to think more deeply about why the justice system sometimes resists changing direction when new evidence appears.

She referred me to the High Court decision in Brisbane South Regional Health Authority v Taylor and raised an issue I had not previously considered.

The question was no longer simply:

"Has new evidence emerged?"

The deeper question became:

"When two important principles both appear to be true, which should take precedence?"

• Justice or Finality?

• Truth or Certainty?

• Mercy or Punishment?

• Individual rights or the common good?

• Privacy or Public Safety?

• Equality or Equity?

In this case of Taylor, the high court was faced with the challenge of extending the time period in which Taylor could appeal.

The difficulty was whether granting the extension of time would prejudice a fair trial for the defendant.

So, on one hand we have the truth that new evidence appears to vindicate Taylor, while on the other hand we have the truth that the elapsed time might make it impossible for the defendant to have a fair trial.

Neither principle is wrong.

The challenge is deciding which principle should guide us in the circumstances before us.

We often imagine that justice is about distinguishing truth from lies.

In reality, many of the most difficult decisions involve two principles that are both true.

Truth tells us an innocent person should not remain convicted.

Another truth tells us that court decisions should eventually become final.

This is not the only example of truth versus truth.

I recalled a situation in my own life many years ago.

After being exonerated of a serious crime, I was asked to speak on a radio program. After, as I was leaving, the host pointed out his view.

“You should never have been exonerated.”

I was shocked. “Why, do you think I am guilty?”

“Oh no, everybody knows you are innocent, but this decision destroys the integrity of the law, and trust in the system.”

Far from dismissing his observation, I thought deeply and clearly of the implications. From my prospective, I was more concerned about truth and justice for me and others like me. But this widened my view to the full consequences of “the truth”.

Also, just months ago, I was sent the death certificate of my girlfriend that I was exonerated of killing 63 years ago; it still had me as her killer.

I applied to the coroner’s court and the AG, but both refused to act.

The government believed that finality and closer for the victim’s family was more important than raking up all the pain, just so history could be corrected.

Recently I approached the attorney General to correct an apparent flaw in the justice system. In WA a deceased criminal cannot have his case reheard at an appeal, even if he has all the evidence to prove him innocent; justice dies with you.

Again, history is denied the truth, for the sake of finality.  

Other cases like that of Lindy Chamberlain:   

In 1980 Lindy was convicted of the murder of her daughter, Azaria.

Years later she was exonerated. However, she had to request a further inquest so that the death certificate reflected the true cause of death; A dingo took her.

Does our obligation to the truth end with a court decision, or does it continue for the sake of history?

Throughout my life, experience has taught me that truth is often deeper than our first understanding of it.

There is only one factual truth. Yet there are often several true principles competing for precedence. The challenge is deciding which principle best serves justice in the circumstances before us.

So, which takes precedence?

My thoughts often return to President John F. Kennedy's famous challenge:

"Ask not what your country can do for you—ask what you can do for your country."

To me, that speaks of the common good. Society must always strive to place the welfare of the community first. At the same time I have also come to believe that the common good cannot be achieved by sacrificing justice for the individual. A society is strongest when it protects both.

Perhaps that is why every difficult case must ultimately be judged on its own facts and according to enduring principles, rather than rigid adherence to precedent alone.

"What Can Ancient Wisdom Teach a Modern Justice System?"

Long before modern courts existed, societies wrestled with these same questions.

The Jewish legal tradition repeatedly returned to the principles of:

• truth,

• justice,

• humility,

• mercy,

• impartiality.

Perhaps these ancient principles still have something to teach us.

These are not uniquely religious ideas.

They are principles that have influenced Western legal thought for centuries.

Whether we approach them through faith, philosophy or common sense, they remind us that justice is more than the mechanical application of rules.

The more I study wrongful convictions and institutional decision-making, the more I am convinced that the greatest challenges are not technological or legal, but deeply human. Perhaps that is why wisdom that has endured for thousands of years still deserves our attention today.

Which brings us to the point of when Truth meets Truth, what is the deciding factor?

Most disagreements occur because one side sees only one truth.

Many Perspectives—One Search for Justice

Victims see one truth.

Police another.

Prosecutors another.

Defence lawyers another.

Families another.

Historians another.

The challenge is not deciding which group is sincere.

The challenge is finding the principle that does justice to them all.

Over many years I have grown in my understanding of human nature.

Though not agreeing completely with others rendition of truth, I will fight to the death for their right to express it; In full belief that they have the same right to be taken seriously as I have.

Perhaps our task is not to choose one truth over another.

Perhaps our task is to seek the higher principle that allows both truths to exist together.