Arbeit macht frei: - Fredrick Töben

don’t think, so much. Isn’t the question that the document raises is, will
Dr Toben be treated differently than Mr Pratt.
MR PERKINS: Your Honour …
HIS HONOUR: And if he were to be treated differently, what does this
tell us about Australia’s justice system.
MR PERKINS: Your Honour, with respect, there can’t be any offence
found in the asking of those questions. I have to say, frankly, I would have
preferred not to be confronted, because I was somewhat confronted when
I saw this document with it today. But that aside, the document asks some
questions, it doesn’t go beyond that. If it is thought that the document
reflects on Dr Töben’s ‘credit’ – I put that in inverted commas – when he
says, as he does in his latest affidavit, that he apologises and that he accepts
that his actions have undermined the authority of the court. That is
something which should not be assumed, but ought to be put to him in
cross-examination.
I have obtained instructions about the circumstances of his writing this
document, but beyond that I maintain that the document is not relevant,
unless it is intended to put it as a basis for cross-examination, in which case
it should be put to Dr Toben in the ordinary course, and treated
accordingly. It is not something which, in my submission, at this time is
relevant to tender in itself. If your Honour pleases.
HIS HONOUR: Mr Perkins, I think just in answer to those submissions:
Firstly, I don’t think the document is tendered, and if it be, it would not be
accepted for the purpose of creating an – or suggesting that the court
ought to be offended by the article. The court won’t be offended by the
article at all.
The document, I think, is proffered for the purpose of establishing, as
you’ve now suggested, that Mr Töben’s attitude to the authority of the
court is contained in the statement implicit in the document that he is
likely to be treated different from Mr Pratt, and as a result what does that
tell us about the justice system? Mr Margo no doubt would contend that
that attitude would be inconsistent with the apology which is contained in
the affidavit to which we’ll come shortly. I think you’re right in one
respect. I think if it is proffered for the reason which I’ve suggested it has
been, it ought to be put to Dr Toben so that he might explain it, but of
course Mr Margo can’t do that until such time as Dr Toben makes
himself available for cross-examination by way of relying upon his own
affidavits.
In the meantime it was right of Mr Margo, I think, to tender it as part of
his case if he is intending to rely upon it as a demonstration and a presentday
demonstration of Dr Töben’s attitude to the authority of the court. Is
there anything else you want to say in relation to the document?
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