Neowarra v State of Western Australia

[2003] FCA 1400

FEDERAL COURT OF AUSTRALIA

Neowarra v State of Western Australia [2003] FCA 1400

EVIDENCE – Hearsay rule – Rule not apply to evidence of a representation, made by a person called to give evidence, given by a person who heard the representations being made if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation – Whether exception applies to statements by Aboriginal people recounting stories, rules, customs and practices handed down by their forebears.

Evidence Act 1995 (Cth) s 64(3)

Graham v The Queen (1998) 195 CLR 606 considered

PADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS

WAG 6016 OF 1996
WAG 6015 OF 1999

WAG 6006 OF 2002

SUNDBERG J
8 DECEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6016 OF 1996 WAG 6015 OF 1999 WAG 6006 OF 2002

BETWEEN:	PADDY NEOWARRA, PADDY WAMA & OTHERS APPLICANT
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	8 DECEMBER 2003
PLACE:	MELBOURNE

GWION GWION BOOK RULING

1. The applicants tendered the book Gwion Gwion and sought to have in evidence statements contained in it attributed to LG, DM, Paddy Wama and Paddy Neowarra together with the photographs of Gwion Gwion art and other subjects to which the statements relate. They did not seek to rely on any of the text that had been written by others. The respondents had no objection to the tender in relation to the statements attributed to the two deceased men and the photographs relating thereto. However they objected to receipt of the statements of the other men on the ground that the statements were hearsay.

2. Jeff Doring was involved in the layout and design of the book. He gave evidence that he collected data from the four authors over a seven year period (1992 to 1999). He said:

   “The renditions of the words attributed in Gwion Gwion to each of the authors respectively are each a true and accurate rendition of words spoken in my presence by the respective authors.
   Where the words attributed to an author refer to a place or painting or event, those words (almost without exception) were respectively spoken by that author at or in the vicinity of that place, painting or event, or at related places. Paintings or events and the photographic illustrations in Gwion Gwion are placed so as to depict that place, painting or event.”

3. Paddy Wama gave evidence that he had talked a lot to Mr Doring, and that what he had told him was true. Paddy Neowarra’s evidence was to the same effect. He identified several photographs in the book. I accept that what is attributed to the two authors is what they told Mr Doring.

4. The applicants rely on s 64 of the Evidence Act 1995 (Cth) for the inclusion of the statements and photographs. Section 64 applies in a civil proceeding if the person who made a previous representation is available to give evidence about an asserted fact: sub‑s (1). Sub‑section (3) provides:

   “(3)If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

   (a)that person; or

   (b)a person who saw, heard or otherwise perceived the representation being made;

   if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”

5. Mr Doring is a person who heard the authors’ representations being made, and he gave evidence that the representations attributed to them in the book were in fact made by them. The question then is whether, when each statement was made to Mr Doring, “the occurrence of the asserted fact was fresh in the memory” of its maker.

6. The statements in question are generally the recounting of stories recorded in the art work the subject of the photographs, or accounts of practices and customs that had been handed down to the authors by their forebears. Some examples will assist in understanding the type of statements involved. Paddy Wama is credited with the statement appearing beneath a photograph of the skull of a young crocodile (page 247):

   “Young crocodile …all these chosen animals belong to Wanjina young people can’t eat ‘em you know.”

   The following statement is attributed to Paddy Neowarra beside a photograph of a rock standing on its end close to a painting site (page 261):

   “If you see this rock standing up there that’s your warning! jallala the way he standing … that’s the one we call jallala.
   If anybody break the law to go in there he get into a lot of problem … that’s jallala.
   He can be secret place mamaa he can be wungud place that’s still mamaa. He can be what they call this ummm Maraja area he’s still mamaa everything is mamaa.”

   The glossary discloses that “mamaa” means something sacred or secret and “Maraja” means ancestral country.

7. Another of Neowarra’s statements is accompanied by a rock painting of a red kangaroo (page 268):

   “Sometime we call ‘em Walamba that’s the red kangaroo and Walamba means he’s an important bloke.
   Very mamaa very important bloke sometimes they kill ‘im and finish it off by themselves … all the men y’know in the bush … secret place they don’t bring it into camp.
   Sometimes they take it into the public for everyone to have a feed but only thing … they don’t call his name. They don’t say Walamba … they say Balmirriya or Jadgud.gude.”

   Finally, beside a tree trunk that is oozing blood coloured sap, Neowarra is recorded as saying (pages 288‑289):

   “See this guli … blood up here? This bloodwood tree we call it guriwin and ah this medicine they use it for when they get cancer in their heart or weak heart well they use this put this guli in the bucket or in the cup and they drink it and they very good and they last longer till they get old. Some will live for maybe 90 or 100 years old. Pretty long life this thing we call it guli.
   Lot a people I saw them with their sores and they use this but they pretty good just like old Aborigine people been use this medicine guriwin … bloodwood sap.”

8. Although the applicants relied on s 64(3), they made no submissions about it, and did not explain how they saw the section applying to statements such as those set out above. They referred to no authorities on the provision. The respondents did not even mention it. The applicants propounded no basis of admissibility other than s 64(3).

9. The words “fresh in the memory of the person who made the representation” also appear in s 66. The context is the same as that in s 64. Of the words in s 66 Gaudron, Gummow and Hayne JJ said in Graham v The Queen (1998) 195 CLR 606 at [4]:

   The word ‘fresh’, in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’) but the core of the meaning intended, is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.”

   At [34] Callinan J, with whom Gleeson CJ agreed, said:

   “Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness. … There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature.”

10. Section 64(1) speaks of a previous representation “about an asserted fact”. Sub‑section (3) speaks of “the occurrence of the asserted fact”. In cases such as Graham there is no difficulty in identifying the asserted fact, and in applying the notion of contemporaneity to it. An event (the assault) took place at a known time and it was followed, some years later, by a representation about the assault. The interval between the event and the statement about it was thought to be too long for it to be said that when the statement was made the event was “fresh in the memory” of the person who made it.

11. In the present case the two men are recounting stories, rules, customs and practices handed down by their forebears. They are not speaking of facts that occurred (“the occurrence of the asserted fact”). When Paddy Wama speaks of the prohibition on the eating of young crocodile, he is not recounting an event or occurrence. The existence of the prohibition may be a fact, but it is not a fact that occurred. It is not an event that happened. Similarly with the bloodwood sap used as a medicine. Paddy Neowarra’s words describe a traditional cure; not an event that happened. The fact that hunters of red kangaroo sometimes eat it themselves in secret, and at other times share it around, but in the latter case call the dead animal Balmirriya rather than Walamba, is in the same position. So too is the description of jallala and the consequences of ignoring its warning.

12. In my view s 64(3) does not apply to the statements in question. I will admit Gwion Gwion, but limited to the statements attributed to LG and DM and the photographs on pages 21, 23, 25, 27, 59, 120 and 121 and that appearing between pages 35 and 38 identified by Paddy Neowarra at pages 5173 to 5175 of the transcript.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Sundberg.

Associate:

Dated:            8 December 2003

Counsel for the Applicants:	R Blowes
Solicitor for the Applicants:	Kimberley Land Council
Counsel for the First Respondent:	V Hughston SC and G Ranson
Solicitor for the First Respondent:	Crown Solicitor for the State of Western Australia
Counsel for the Second Respondent:	M Gregory
Solicitors for the Second Respondent:	Minter Ellison
Counsel for the Group 2A Respondents:	G Donaldson
Solicitors for the Group 2A Respondents:	Blake Dawson Waldron
Counsel for the Third Respondent:	M McKenna
Solicitors for the Third Respondent	Hunt & Humphry
Date of Hearing:	29 October 2001, 6 and 30 May 2002, 6 June 2002
Date of Ruling:	8 December 2003