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Where Does Truth Lie? The Challenges and Imperatives of Fact-Finding in Trial, Appellate, Civil and Criminal Courts and International Commissions of Inquiry


The Hon Michael Kirby AC CMG

The author takes three instances to illustrate the difficult but essential task of fact-finding in formal decision-making. The first concerns the residual fact-finding responsibility of appellate courts when scrutinising fact-finding in primary civil proceedings, with an emphasis on incontrovertible facts. The second involves criminal appeals where the prosecution has presented a compelling case of circumstantial evidence, but a retrial may be required because of an unbalanced judicial direction. The third involves an international commission of inquiry on human rights where the state concerned refuses to cooperate yet demonstrates faulty testimony (later acknowledged) by a witness. Human decision-making is always subject to error, whether on the facts or the law. However, that risk cannot impede the imperatives of decision-making and of explaining relevant fact-finding in the most convincing way possible, so as to discharge the ultimate responsibility of reaching a reasoned decision.

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(2018) 41(2) UNSWLJ 293: