Breaking The Witness?


The task of any Royal Commission or Special Commission of Inquiry is to uncover the truth. This should be the sole goal of the Special Commission of Inquiry concerning the investigation of child abuse allegations in the Hunter region.

However, many observers consider that this Inquiry has strayed from its path and instead become a one-sided prosecution of Detective Chief Inspector Peter Fox.

When Peter Fox blew the whistle on child abuse in the Hunter region and alleged that the Catholic Church and the NSW Police had failed for decades to adequately protect victims or prosecute perpetrators, it was inevitable his claims would be subject to rigorous examination.

Fox’s allegations seriously challenged two of the most powerful institutions in our society, the NSW Police and the Catholic Church. Anyone watching the debate on child abuse that was unfolding in this country in late 2012 could see both these institutions were bristling under the criticism that they had failed in their duties to protect and serve.

In stepped then Premier Barry O’Farrell who rushed to establish the Hunter inquiry with very narrow terms of reference and a senior crown prosecutor, Margaret Cunneen, as Commissioner. The Hunter Inquiry is strictly limited to inquiring into the alleged failings of the Church and Police in regards to the criminal child abuse by just two priests, Denis McAlinden and James Fletcher.

As the Inquiry has unfolded it has become increasingly clear that it is not really the Catholic Church or the NSW Police that it is putting under the microscope. It is Peter Fox. While the Commonwealth Royal Commission into Institutional Child Abuse has been uncovering appalling and systematic child abuse by one institution after another, the Hunter Inquiry has been focussed on demolishing one man.

As a barrister myself I have been in trials lasting days, weeks and even months. I have represented clients during months of hearings in a Royal Commission and seen countless witnesses facing hours of cross examination. In the most extreme, and rare, cases this cross examination can last up to two or three days, as issue after issue is explored in depth.

Cross examination is intended to rigorously test evidence that a witness has given. It is an unbalanced process where the barrister has all the power and the witness can be run in circles with little, if any, ability to fight back. At the end of two or three days cross examination all but the most extraordinarily robust witness is reduced to a wreck. By this stage a witness is exhausted, mentally and physically, and in danger of giving whatever answer they can to just end the barrage.

Peter Fox has spent 14 days in the witness box during this Hunter Inquiry. Almost the entirety of this time has been under cross-examination from a pack of barristers representing the Inquiry, the Church and Police.

Little if any constraint has been ordered by the Commissioner. The end result has been hours and hours of relentless questioning on often obscure details stretching back over decades of Fox’s eventful, stressful and extensive policing career. Nobody’s credibility can survive this kind of assault. Nobody’s mental or physical health can withstand it either.

The final insult from this abusive Inquiry came on December 11 when Fox was called to give his 14th day of evidence. The night before he had spent a sleepless night, deeply distressed by news that his brother had been involved in a serious accident and had suffered potentially life-threatening injuries. Despite the impact of the continued questioning, his personal distress and lack of sleep, Fox again faced up to the Inquiry.

Starting at 1:30pm in a court room in Sydney, the Inquiry was informed of Fox’s personal situation and distress. He was advised that the Commissioner understood. A senior solicitor with the Inquiry told Fox that the questioning would only take a short period of time. When Fox asked “What, half an hour?” He was advised “If that.”

He was then cross-examined for five hours by five different barristers with sporadic additional questioning by Commissioner Cunneen. No apology was given. No break was granted save for allowing Fox five minutes out of the witness box to confer with his own barrister in the middle of this final attack.

Fox is a tough old copper but he and his wife Penny, who was present during her husband’s ordeal, were both seriously shaken by this. That night, having driven half way home to their place in the Hunter, they pulled over on the F3 Freeway and together they cried. Who wouldn’t?

A senior counsel with long experience in Commissions of Inquiry informed me that it was his view that such treatment of a witness was “outrageous”. It was evidence, he said, that the Inquiry was failing in its prime duty to uncover the truth and not to attack witnesses.

A recent leak of the Inquiry’s draft findings to News Limited suggests that they will be deeply critical of Fox. Nobody watching it would ever have thought differently.

But this narrow, one-eyed Inquiry will soon come and go. The politician who set it up already has. For Fox, and the countless thousands of survivors of child abuse who credit him for his courage, the real inquiry is the Commonwealth Royal Commission into Institutional Child Abuse.

In stark contrast to the Hunter Inquiry, the Commonwealth Royal Commission’s balanced, insightful, brave and respectful approach is widely applauded. Its unambiguous aim is to uncover the truth and to hold those guilty of past abuses to account. Everyone who hasn’t been lost in the Hunter Inquiry knows we have Fox to thank for that.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.