Daniel v State of Western Australia

[2000] FCA 1356

FEDERAL COURT OF AUSTRALIA

Daniels v State of Western Australia [2000] FCA 1356

NATIVE TITLE – evidence – objections on grounds of hearsay and irrelevance – expert evidence of third applicants – particularisation of general ruling

Evidence Act 1995 (Cth), s 136

Quick v Stoland Pty Ltd (1998) 157 ALR 615, applied

DANIELS & OTHERS FOR THE NGARLUMA PEOPLE, MONADEE & OTHERS FOR THE YINDJIBARNDI PEOPLE, HOLBOROW (NEE COSMOS) & OTHERS FOR THE YABURARA & MARDUDHUNERA PEOPLES AND DALE & OTHERS FOR THE WONG-GOO-TT-OO PEOPLE v THE STATE OF WESTERN AUSTRALIA & OTHERS
WAG 6017 of 1996
and part of WAG 127 of 1997
and part of WAG 6256 of 1998

R D NICHOLSON J
21 SEPTEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6017 of 1996

and part of WAG 127 of 1997
and part of WAG 6256 of 1998

BETWEEN:

DANIELS & OTHERS FOR THE NGARLUMA PEOPLE AND MONADEE & OTHERS FOR THE YINDJIBARNDI PEOPLE
First Applicants

HOLBOROW (NEE COSMOS) & OTHERS FOR THE YABURARA & MARDUDHUNERA PEOPLES
Second Applicants

DALE & OTHERS FOR THE WONG-GOO-TT-OO PEOPLE
Third Applicants

AND:

THE STATE OF WESTERN AUSTRALIA & OTHERS
Respondents

JUDGE:	R D NICHOLSON J
DATE:	21 SEPTEMBER 2000
PLACE:	PERTH

REASONS FOR RULINGS

1. On 6 July 2000 (see transcript 5954-5956) I gave a general ruling in respect of reports of the expert anthropologist witness, Mr Rory O’Connor.  Those reports appear in two volumes together with a supplementary report.

2. The ruling given on 6 July 2000 followed an earlier ruling given on 26 June 2000.  The reasoning in that ruling was not challenged in the submissions in respect of the reports of Mr O’Connor.  It was contended only that the reasoning should be differently applied.  I therefore proceed on the basis of the understanding of the law which I set out in my reasons of 26 June 2000.  I also relied on the same reasons in rulings which I gave on 19 September 2000 in respect of objections made on behalf of a number of the respondents.

3. In the ruling given on 6 July 2000 I concluded generally that there was a danger that a particular use of the evidence in the reports of Mr O’Connor, being the evidence that is subject of the objections, might be unfairly prejudicial to the parties making or supporting the objections. I therefore ordered that the use of such evidence be limited pursuant to s 136 of the Evidence Act 1995 (Cth) to the application of s 79 of the that Act in relation to the report of the expert: See Quick v Stoland Pty Ltd (1998) 157 ALR 615 as considered in my reasons of 26 June 2000.

4. However, I said that the objections as submitted in writing had overstated the deletions required.  Opportunity was therefore given to counsel for the objectors to mark on the exhibited copies of the expert report the passages which should be the subject of the limited usage.  It is not proved possible for these to be agreed between the respondent objectors and the third applicants.

5. It is therefore necessary for me to consider the application of the general ruling made on 6 July 2000 to the particular pieces of evidence and to determine whether any of those pieces of evidence should be excluded from the scope of the general ruling.

6. Having done so, I find that there are a very limited number of instances where I consider that the effect of the general ruling should be further restricted.  My reasons in respect of each of the pieces of evidence are as follows:

   VOL 1 (3/M(1))

   PAGE  PASSAGE  OBJECTOR

   i  " Don, who had spent…  1^st App

   With another one commenced"         

   Hearsay and irrelevant. Admissible under s 60 for the purposed applying s 79. Danger other uses of evidence re Fred Hicks would be unfairly prejudicial. Limited under s 136 to purpose of testing foundation of specialised knowledge: s 79

   8-9  "It was in response…..  1^st Resp

   are relevant to this report"    

   Limited usage conceded.

   9  "The payment…involved"                 1^st App; 1^st Resp

   Limited usage conceded.

   10  entire page  1^st App; 1^st Resp

   Limited usage conceded.

   11  entire page  1^st App; 1^st Resp

   Limited usage conceded.

   19-33  entire 15 pages  1^st App; 1^st Resp

   Limited usage conceded.

   44  "In Western Australia..submission"    1^st Resp

   Deletion conceded.

   63  "3.3….nineteen-thirties"  1^st App

   Excluded from order applying s 136 limitation.

   63  entire second paragraph  1^st App; 1^st Resp

   Danger evidence would be unfairly prejudicial. Limited under s 136 to s 79 purpose.

   64-68  entire 5 pages  1^st App

   Danger would be unfairly prejudicial on issue of great centrality. Limited under s 136 to s 79 purpose.

   65  "Diamond and Bertie…Karratha"     1^st Resp

   See 64 – 68.

   66  "Wilfred….'settlements”  1^st Resp

   See 64 – 68.

   67-68  entire 2 pages  1^st Resp

   See 64 – 68.

   75-76  "in this regard…survived them"       1^st Resp

   "The transfer….survived them"        1^st App

   No evidence making the methodology of transfer relevant. Danger use of evidence would be unfairly prejudicial. Limited under s 136 to s 79 purpose.

   77  "The fiction….this report"                 1^st App

   Objection withdrawn.

   77  last sentence p77             1^st App; 1^st Resp

   Relevant only to apply s 79. Danger other uses would be unfair and prejudicial. Limited under s 136 to such purpose.

   78  entire page  1^st App; 1^st Resp

   Limited usage conceded.

   79portions of page marked in yellow

   Same as last sentence 77.

   79-80entire page 80, portions of 79 not marked in yellow

   Limited usage conceded.

   84-85  "As has been….with the country"     1^st App; 1^st Resp

   Relevant only to apply s 79. Danger other uses would be unfair and prejudicial. Limited under s 136 to such purpose.

   86-88  entire 3 pages  1^st App

   Excluded from s 136 limitation other than as it includes direct statements; hearsay of the type not allowed by Blackburn J in Milirrpum.  Danger non-excluded evidence would be unfairly prejudicial.

   87-88  "As an integral…in the region"         1^st Resp

   See 56 – 88.

   93-94"The coastal…(T.Douglas-pers comm)1^st App

   Hearsay by person giving evidence and so danger would be unfairly prejudicial. Admissible under s 60 for purpose of applying s 79. Limited under s 136 to s 79 purpose.

   "However…young man"                   1^st Resp

   Within expert’s specialised knowledge. Excluded from s 136 limitation.

   96-98entire section from "I will let" to       1^st App; 1^st Resp

   "tell lies"

   Limited usage conceded.

   98  "Given the social….passed on"         1^st App; 1^st Resp

   Hearsay by person giving evidence in the case and so danger would be unfairly prejudicial. Admissible under s 60 for purpose of applying s 79. Limited under s 136 to that purpose.

   99  entire page  1^st App

   Same as 98.

   VOL 2 (3/M(2))

   4"The knowledge…store of knowledge" 1^st Resp

   Observation within specialised knowledge. Excluded from s 136 limitation.

   6  entire plate 1 after 1^st sentence          1^st App; 1^st Resp

   Comment on all plates are a mixture of hearsay, irrelevant evidence, narrative in the character of evidence being outside specialised knowledge and derivative in part from witnesses called to give evidence. Danger comments would be unfairly prejudicial. Limited under s 136 to s 79 purpose.

   6  entire plate 2  1^st App; 1^st Resp

   See 6.

   6-7  entire plate 3 after 1^st sentence          1^st App; 1^st Resp

   See 6.

   8  entire plate 6 after 1^st sentence          1^st App; 1^st Resp

   See 6.

   8-9  entire plate 8 after 1^st sentence          1^st App; 1^st Resp

   See 6.

   11  last 2 sentences, plate 15                   1^st App; 1^st Resp

   See 6.

   11-12  entire plate 16  1^st App; 1^st Resp

   See 6.

   12-13  entire plate 17 after 1^st sentence        1^st App; 1^st Resp

   See 6.

   13  entire plate 20 after 1^st sentence        1^st App; 1^st Resp

   See 6.

   14  last sentence, plate 22  1^st App; 1^st Resp

   See 6.

   14  entire plate 23 after 1^st sentence        1^st App; 1^st Resp

   See 6.

   15  entire plate 25 after 1^st 2 words         1^st App; 1^st Resp

   See 6.

   15  entire plate 27 after 1^st sentence        1^st App; 1^st Resp

   See 6.

   16-18entire plates29, 30, 31, 33, 34,          1^st App; 1^st Resp

   See 6.

   In relation to plate 32

   See 6 in relation to portion marked yellow.  Two sentences deleted by concession.  Remainder accepted as subject to limited usage.

   35 except 1^st sentences

   See 6.

   19  entire plate 38  1^st App; 1^st Resp

   See 6.

   entire plate 41

   See 6.

   20  last sentence, plate 42  1^st App; 1^st Resp

   See 6.

   20-21  entire plate 45 after 1^st sentence        1^st App; 1^st Resp

   See 6.

   21  entire plate 48 after 1^st sentence        1^st App; 1^st Resp

   See 6.

   22plate 49

   See Supplementary Report 76.

   SUPPLEMENTARY REPORT (3/M(3))

   15  "Subsequent conversations…lands"   1^st App

   Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136.

   16-17  last sentence p16, entire p 17            1^st App

   Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136.

   18  "and that somehow…are correct"     1^st Resp

   Deletion conceded.

   27-28  "Betty Dale…therefore unreliable"    1^st App

   Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136.

   34-35"The TA have seen…into their lands"1^st App

   Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136.

   40  "Cane Hick's…report below"            1^st Resp

   No foundation; hearsay; not apparent within expertise; seemingly danger of unfair prejudice. Limited under s 136 to s 79 purpose.

   48  entire ss 3.2.2    1^st Resp

   With exception of second sentence, within specialised knowledge so far as marked yellow and therefore excluded from limitation under s 136. Second sentence excluded by s 76.

   entire 3.2.4  1^st Resp

   With exception of second sentence, within specialised knowledge and therefore excluded from limitation under s 136. Second sentence excluded by s 76

   49-50  “However…grandchildren today”     1^st Resp

   With exception of final sentence, within specialised knowledge and so excluded from limitation under s 136. Absence of direct evidence goes to weight. Unfair prejudice of final sentence substantially outweighs probative value: excluded under s 135.

   51“The TA group”…bottom of the page 1^st Resp

   Within specialised knowledge and so excluded from limitation under s 136. Absence of direct evidence goes to weight.

   52-53 (as marked)  “The TA…Yandeearra”                   1^st Resp

   From “The TA” to “themselves” in line 10 within specialised knowledge and so excluded from limitation under s 136. Balance from “This became” to “Yandeearra” is opinion on legal conclusion excluded by s 76; in any event unfairly prejudicial as to outweigh probative value and excluded under s 135.

   61entire 1^st paragraph  1^st Resp

   Within specialised knowledge. Because of the danger that it might be unfairly prejudicial to other parties, limited by application of s 136.

   75“I do not agree…accurate”             1^st Resp

   Not within specialised knowledge.  Excluded under s 76.

   76sentence beginning “A version…”    1^st Resp

   Hearsay, admitted for the purposes of proof of foundation of expert’s opinion only (under s 60) and limited under s 136 as unfairly prejudicial.
   Consistently with this ruling the same sentence is similarly limited where it appears in association with Plate 49.

   77entire paragraph 9  1^st Resp

   Limitation under s 136 conceded.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Rulings herein of the Honourable Justice R D Nicholson.

Acting Associate:

Dated:             21 September 2000

Counsel for the first applicants:

Mr M Barker QC
Mr W de Mars

Solicitor for the first applicants:

Aboriginal Legal Service of Western Australia (Inc)

No appearance for the second applicants

Counsel for the third applicants:

Mr I Viner QC

Solicitor for the third applicants:

Kitto & Kitto

Counsel for the first respondents:

Mr K Pettit

Mr S Wright

Solicitor for the first respondents:

Crown Solicitor’s Office

Counsel for the 2A respondents:

Mr J Allanson

Solicitors for the 2A respondents:

Australian Government Solicitor

No appearance for the 2B respondents

Solicitors for the 2B respondents:

Blake Dawson Waldron

No appearance for the fourth respondents

Solicitors for the fourth respondents:

Minter Ellison

Counsel for the fifth respondents:

Mr D Martino

Solicitors for the fifth respondents:

Jackson McDonald

Counsel for the sixth and seventh respondents:

Mr M McKenna
Ms K White

Solicitor for the sixth and seventh respondents:

Hunt & Humphry

No appearance for the eighth, twelve A and twelve B respondents

Counsel for the ninth and tenth respondents:

Mr G Gishubl

Solicitors for the ninth and tenth respondents:

Jackson McDonald

Counsel for the eleventh respondent:

Mr C Pullin  QC

Counsel for the part sixteenth and part seventeenth respondents:

Mr M McKenna
Ms K White

Solicitors for the eleventh, part sixteenth and part seventeenth Respondents:

Hunt & Humphry

No appearance for the thirteenth and fifteenth respondents

Counsel for fourteen C respondents:

Mr R Butler

No appearance for the nineteen B respondents

No appearance for nineteen D respondents

No appearance for the twenty second respondents