Jango v Northern Territory of Australia (No 5)
[2005] FCA 281
•21 MARCH 2005
FEDERAL COURT OF AUSTRALIA
Jango v Northern Territory of Australia (No 5) [2005] FCA 281
JOHNNY JANGO and Ors v NORTHERN TERRITORY OF AUSTRALIA and Ors
NTD 6023 of 1998SACKVILLE J
SYDNEY
21 MARCH 2005
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 6023 of 1998
BETWEEN:
JOHNNY JANGO AND OTHERS
APPLICANTSAND:
NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENTGPT MANAGEMENT LIMITED
SECOND RESPONDENTCOMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT
JUDGE:
SACKVILLE J
DATE:
21 MARCH 2005
PLACE:
SYDNEY
RULING ON EVIDENCE
The parties have sought rulings on the admissibility of certain documents that have been tendered by the Commonwealth. I have been asked to address the question of admissibility on the papers. As the submissions are very brief, my reasons will also be brief.
Document 5
This document is an extract from Professor Tonkinson’s field notes of 19 June 1996 at Mutitjulu, recording a conversation with Dr Willis. The tender is made pursuant to s 43 of the Evidence Act 1995 (Cth) (‘Evidence Act’), which is as follows:
‘(1)A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not:
(a)complete particulars of the statement have been given to the witness; or
(b)a document containing a record of the statement has been shown to the witness.
(2)If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:
(a)informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and
(b)drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.
(3)For the purpose of adducing evidence of the statement, a party may re-open the party’s case.’
Dr Willis’ statement, as recorded by Professor Tonkinson, that there were no sites within the town area, is said to be inconsistent with his evidence. It is not entirely clear which portion of Dr Willis’ evidence is said to be inconsistent with the recorded statement. I assume, however, that it is his evidence (at T2912) that there were a whole range of places within the town area where people went for food.
If that is the inconsistency alleged, I do not think that it is made out. The conversation with Professor Tonkinson related to ‘sites’. I do not interpret Dr Willis, in the comments recorded by Professor Tonkinson, as saying anything necessarily inconsistent with his observations in the transcript. The tender of Document 5 should be rejected.
Document 6
This document comprises ‘consultation notes’ dated 30 March 2000, which record the substance of a discussion between Windlass Kunmarnarra and Mr Allan, apparently acting on behalf of the Aboriginal Areas Protection Authority. In that discussion, Windlass is recorded as saying that there was no need to speak to any women because there were no women’s sites in the area (presumably near the intersection of Yulara Drive and Lasseter Highway).
I have been referred to T1229 to T1232. In that passage, Windlass denied making this statement (although it must be said that his evidence suggested that he may have had difficulty identifying the conversation being referred to). I have not, however, been referred to passages in Windlass’ evidence that are inconsistent with the statement recorded by Mr Allan. In the absence of such a reference, I do not think that the tender of the document can be supported by s 43 of the Evidence Act.
Document 8(b)
Document 8(b) is a copy of a handwritten entry for 28 August 1974 in the diary of Derek Roff. Mr Roff was cross-examined about certain observations recorded in the diary and explained what he meant by them. The Commonwealth tenders the whole of the entry to provide ‘further information about the context of admitted facts’.
In the absence of greater specificity as to the relevance of the diary entry as a whole, I propose to reject the tender.
Documents 9(a)-(e), (g)
These documents comprise 1972 and 1974 diary entries made by Ian Cawood, who was called as a witness by the Commonwealth. The tender of the diary entries is supported on the basis that Mr Cawood was asked questions about them in cross-examination that inaccurately described the recorded information or that did not elicit certain information, such as dates of particular activities, that are relevant to evaluating the significance of his evidence.
The dairy entries would seem to be business records prepared by Mr Cawood in the course of his employment as an Assistant Ranger at Ayers Rock – Mt Olga National Park (as it was then known). While Mr Cawood could (and perhaps should) have been asked about these entries in re-examination, I think that they may be relevant to the issues. Accordingly, I propose to admit them.
Documents 10(a)-(g)
These documents consist of extracts from various Pitjantjatjara/Yankunytjatjara-English dictionaries. The applicants object on the ground that the Commonwealth did not refer to the dictionary definitions in examination in chief of its own witnesses. Thus, so it is said, the applicants were denied the opportunity to cross-examine those witnesses on the definitions.
It is not apparent to me why the Commonwealth was obliged to lead evidence of the dictionary definition from its own witnesses. All of the material is publicly available and some of it was prepared by witnesses called by the Commonwealth. I propose to admit the dictionary exhibits.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ruling on Evidence herein of the Honourable Justice Sackville. Associate:
Dated: 21 March 2005
Solicitor for the Applicants: Central Land Council Solicitor for the Third Respondent: Australian Government Solicitor Date of Hearing: Dealt with on the papers Date of Judgment: 21 March 2005
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