Daniel v Western Australia

Case [2000] FCA 858

FEDERAL COURT OF AUSTRALIA

Daniels v State Of Western Australia [2000] FCA 858

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

26 June 2000

PERTH

GENERAL DISTRIBUTION

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

JUDGES:

R D NICHOLSON J

DATE:

26 JUNE 2000

PLACE:

PERTH

CORRIGENDA

The word  “Daniels” is deleted and replaced by the word “Daniel” in all decisions, titles and where ever appearing in relation to this matter.

The citation “Lee v R (1998) 157 ALR 394 at 502” in the last sentence at paragraph 19 be deleted and replaced by “Lee v R (1998) 157 ALR 394 at 402”.

…………………………
Tania McCaskie

Associate R D Nicholson J
6  March 2001

FEDERAL COURT OF AUSTRALIA

Daniels v State Of Western Australia [2000] FCA 858

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

GENERAL DISTRIBUTION

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

JUDGES:

R D NICHOLSON J

DATE:

21 SEPTEMBER 2000

PLACE:

PERTH

CORRIGENDA

In relation to the reasons for judgment issued on 26 June 2000:

1.   At page 8, par 22 first line, the words "that expert" should be replaced by the words "that an expert" to read: "…. to the extent that an expert had relied upon hearsay.."

2.   At page 8, par 22 and page 13, par 31, the reference to "his report" and "his opinion" be amended to read "his or her report" and "his or her opinion".

3.   At page 13, par 31, the words "probative evidence" be deleted and…

Continue reading Daniel v Western Australia

Sign in free to access the full text

Details
AGLC
Daniel v Western Australia [2000] FCA 858
Case
[2000] FCA 858
Decision Date

CaseChat Overview and Summary

In Daniel v Western Australia, the case involved a dispute over the admissibility of opinion evidence from an anthropologist in relation to the significance of the Burrup to the Aboriginal community. The High Court of Australia was called upon to determine the legal issues surrounding the application of the Evidence Act 1995 (Cth) to the admission of expert opinion evidence. Specifically, the Court needed to decide whether an anthropologist's opinion, based on their study and experience, could be admitted under section 79 of the Evidence Act, which allows for the admission of opinion evidence if it is substantially based on the expert's specialised knowledge. The Court examined the statutory context and the nature of the anthropologist's specialised knowledge, concluding that such evidence could be admissible if it met the criteria set out in the Act.

The Court focused on the requirement that the expert's opinion must be "wholly or substantially" based on their specialised knowledge, which derives from their training, study, or experience. The Court noted that the Evidence Act does not require the expert's opinion to be related to a recognised field of expertise or to result from the application of accepted theories or techniques. Instead, the focus was on whether the expert's inference was based on their specialised knowledge. The Court also considered prior decisions that allowed anthropologists to provide opinion evidence based on their field work and communication with the community. Ultimately, the Court held that an anthropologist's opinion, which is substantially based on their specialised knowledge, could be admissible under section 79 of the Evidence Act.

The High Court ruled that the opinion evidence of an anthropologist could be admissible if it was substantially based on their specialised knowledge. This decision clarified the scope of section 79 of the Evidence Act, affirming that the admissibility of expert opinion evidence is determined by whether the opinion is based on the expert's specialised knowledge, rather than whether the expert's opinion is related to a recognised field of expertise or derived from accepted theories or techniques. The Court's decision ensures that expert evidence is evaluated based on the expert's inference, which must be substantially based on their specialised knowledge. The Court's ruling provides a clear framework for the admissibility of expert opinion evidence in future cases, ensuring that such evidence is admitted only if it meets the criteria set out in the Evidence Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my view the question to which objection is taken seeks the witnesses opinion on the issue of the Burrup.Opinion evidence The basic rule of evidence concerning opinion evidence is that stated in s 76 of the Evidence Act 1995 (Cth). The rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. That must be read subject to the exception in s 79 which provides that "if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."General approach to section In HG v R (1999) 160 ALR 554 at 563-4 Gleeson CJ said:"This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinion of expert witnesses be confined, in accordance with s79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinion" (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinion with a spurious appearance of authority, and legitimate process of fact-finding may be subverted.”I do not accept the submission for the first applicants that this dicta is distinguishable from the present case because it was stated in the context of criminal law. In its terms it addresses the content of s 79 wherever that section falls for application.Requirements of the section The first precondition for the application of the exception is that the witness has "specialised knowledge based on the person's training, study or experience." Parliament chose to not include a test that an expert's opinion be related to a recognised field of expertise or result from the application of theories or techniques accepted in that field: Australian Law Reform Commission Report on the Evidence Act (ALRC 38) p 82, par 148. In that context the question arises whether the effect of s 79 is to admit, subject to the control of s 135 to which reference will be made, evidence resulting from "study" of a people by an anthropologist where that evidence relates to particular statements made to the anthropologist by some of the people who are able to be called as witnesses in connection with the claim for native title. It is also to be borne in mind that the words "wholly or substantially" in the section were introduced in lieu of the words "wholly or partly" to avoid expert's giving non-expert opinion evidence: Australian Law Reform Commission Report on the Evidence Act (ALRC 38). In Quick v Stoland Pty Ltd (1998) 157 ALR 615 at 617-8 Branson J, with which Emmett J relevantly agreed, said that unlike the common law as set out in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 375, the Evidence Act and s 79 do not require that the admissibility of expert opinion depends upon proper disclosure and proof of the factual basis of the opinion. This is because it was intended that the general discretion of the court to refuse to admit evidence was sufficient to deal with problems that might arise in respect of expert opinion the basis of which was not disclosed: ALRC Report No 26, vol 1, para 750. Section 79 was therefore to be seen as concerned with the view, estimation or judgment inherent in the inference drawn by the expert from that factual basis. Her Honour said "it is the expert's inference, in this sense, which s 79 requires to be wholly or substantially based on his or her specialised knowledge."Statutory context

Decision

Reasons for decision

The specialised knowledge of an anthropologist derives from the function to be performed by the anthropologist and for which he or she is trained and in relation to which study has been undertaken and experience gained. "Anthropology" is the science of humankind, in the widest sense: The New Shorter Oxford English Dictionary p 87. Cultural or social anthropology is the science of human social and cultural behaviour and its development. Socio-cultural anthropology is traditionally divided into ethnography and ethnology. The former is the primary, data-gathering part of socio-cultural anthropology, that is, field work in a given society. This involves the study of everyday behaviour, normal social life, economic activities, relationships with relatives and in-laws, relationship to any wider nation-state, rituals and ceremonial behaviour and notions of appropriate social behaviour. See C P Kottak, Anthropology: the Exploration of Human Diversity (3rd ed, 1982) p 12. It is apparent that an anthropologist carrying out field work is more than likely to speak to a wide range of persons in the people under examination.Prior decisions In Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 at 161 Blackburn J held it was not correct to apply the hearsay rule so as to exclude evidence from an anthropologist in the form of a proposition of anthropology - a conclusion which has significance in that field of discourse. He said it could not be contended - and was not - that the anthropologists could be allowed to give evidence in the form: "Munggurrawuy told me that this was Gumatj land." He continued:"But in my opinion it is permissible for an anthropologist to give evidence in the form: ‘I have studied the social organization of these aboriginals. This study includes observing their behaviour; talking to them; reading the published work of other experts; applying principles of analysis and verification which are accepted as valid in the general field of anthropology. I express the opinion as an expert that proposition X is true of their social organization.’In my opinion such evidence is not rendered inadmissible by the fact that it is based partly on statements made to the expert by the aboriginals.”Blackburn J was considering the admissibility of expert evidence purporting to give an account of the social organization or "laws" of aboriginals. The opinion evidence was partly based on what the experts had been told by the aboriginals. Of that fact Blackburn J said:"The process of investigation in the field of anthropology manifestly includes communicating with human beings and considering what they say. The anthropologist should be able to give his opinion, based on his investigation by processes normal to his field of study, just as any other expert does. To rule out any conclusion based to any extent upon hearsay - the statements of other persons - would be to make a distinction, for the purposes of the law of evidence, between a field of knowledge not involving the behaviour of human beings (say chemistry) and a field of knowledge directly concerned with the behaviour of human beings, such as anthropology. A chemist can give an account of the behaviour of inanimate substances in reaction, but an anthropologist must limit his evidence to that based upon what he has seen the aboriginals doing, and not upon what they have said to him.”Blackburn J's reasons were not given in the context of the Evidence Act and he also accepted the common law rule that an expert opinion must make apparent the basis of such an opinion.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.