Neowarra v Western Australia

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FEDERAL COURT OF AUSTRALIA

Neowarra v State of Western Australia [2003] FCA 1399

EVIDENCE – Expert evidence – Anthropological evidence – Whether “basis rule” applies – Hearsay – Rule not apply to evidence of previous representation admitted because relevant for purpose other than proof of fact intended to be asserted by representation – Application of exception to evidence of anthropologists of statements made by Aboriginal persons about customs and practices.

Evidence Act 1995 (Cth) ss 59, 60, 76‑80, 135‑136

The Commonwealth v Yarmirr (2001) 208 CLR 1 cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 considered
HG v The Queen (1999) 197 CLR 414 considered
Ramsay v Watson (1961) 108 CLR 642 cited
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 cited
Wilband v The Queen (1967) 2 CCC 6 cited
Quick v Stoland Pty Ltd (1998) 87 FCR 371 cited
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 considered
Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales (1998) 154 ALR 527 cited
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 cited
Lee v The Queen (1998) 195 CLR 594 considered
Daniel v Western Australia (2000) 178 ALR 542 considered
Lardil v Queensland [2000] FCA 1548 considered
Welsh v The Queen (1996) 90 A Crim R 364 cited
Harrington‑Smith v Western Australia (No 7) [2003] FCA 893 cited

Law Reform Commission (Australia), Interim Report No 26
Evidence, vols 1 and 2 (1985)

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, SCOTTY MARTIN, JIMMY MALINE, JACK DANN, JACK DALE, KEITH NENOWATT, PAUL CHAPMAN, REGGIE TATAYA, DONALD CAMPBELL, PANSY NULGIT, BETTY WALKER, KATHY OREERI, MANDY WUNGUNDIN, BARNEY U
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENT

JUDGE:

SUNDBERG J

DATE:

8 DECEMBER 2003

PLACE:

MELBOURNE

RULING ON EVIDENCE

JUSTICE LEE’S ORDER

  1. On 12 March 1999 Lee J directed that the applicants file and serve:

    “1.… a document or documents being an Outline of Case containing the following:

    (a)An outline of the facts relied upon to show that at the time of the formation of the colony of Western Australia, an indigenous community held native title by reason of presence on, and connection with, the land of the claim area;

    (b)An outline of the facts relied upon to show that the applicants are a group of Aboriginal people with ancestral connections to the community referred to in paragraph (a); and

    (c)An outline of the facts relied upon to show that the applicants acknowledge and observe traditional laws and customs that are based on the traditional laws and customs of the community referred to…

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Details
Case
[2003] FCA 1399
Decision Date

CaseChat Overview and Summary

The case of Neowarra v Western Australia involved claims by Indigenous groups regarding their rights to land and resources. The dispute reached the court, which was tasked with determining several legal issues surrounding the admissibility and weight of expert evidence, particularly anthropological evidence, and the applicability of the "basis rule" in this context. The court was also required to address the admissibility of hearsay evidence within the context of expert opinions and whether certain objections raised by the parties warranted the exclusion of specific evidence.

The court meticulously examined the objections raised by the parties, focusing on whether the objections were valid and, if so, whether they justified the exclusion of the evidence in question. The objections predominantly centred around the lack of primary evidence to support conclusions or opinions, the hearsay nature of the evidence, and the absence of a discernible basis for the conclusions. The court had to discern whether the objections were about the lack of admissible evidence establishing the facts or about the failure to outline the facts assumed by the experts, which would affect the weight of the evidence rather than its admissibility. The court held that the opinion provisions of the Evidence Act did not require the facts underlying an expert's opinion to be established by admissible evidence, although such facts could influence the weight assigned to the opinion. The court also determined that while hearsay material could underpin an expert's opinion, it did not render the opinion inadmissible, though it could affect its weight.

The reasoning of the court was pivotal in clarifying the admissibility of expert evidence, particularly anthropological evidence, and the role of hearsay in such contexts. The court concluded that expert opinions based on hearsay were admissible under the Evidence Act, provided they were relevant for a purpose other than proving the facts asserted by the representation. The court emphasised that the weight of such evidence could be reduced due to its hearsay nature. Furthermore, the court rejected the argument that the absence of primary evidence supporting expert opinions necessitated the exclusion of such evidence, noting that the weight of the evidence could be adjusted based on the availability of supporting evidence.

The court's decision provided clarity on the admissibility and weight of expert evidence in Indigenous land rights cases, underscoring the importance of the context in which the evidence is presented. The court's final orders would likely address the admissibility of the contested evidence and provide guidelines for the weight to be assigned to such evidence in future proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The notices containing the objections are not very helpful. Most of the Group 2A respondents’ objections take one of the following forms:·no primary evidence to support conclusion or opinion. Basis·no primary evidence to support conclusion or opinion. Hearsay·no expressed or discernible basis for the conclusion or opinion·basis·hearsay.Most of the first respondents’ objections take one of the following forms:·Form. Factual basis not stated·Form. Factual basis not stated. Hearsay·Form. Hearsay·Form. Hearsay. Factual basis not disclosed or proved.I was not taken to any part of the Joint Report to illustrate what was intended to be conveyed by these objections. This gave rise to particular difficulty in relation to the “basis” objection. It is not clear whether the complaint is that the applicants have not by admissible evidence established the facts they assert or assume (cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]), or whether it is that the authors have not set out the facts they assert or assume, with the result that the Court cannot determine whether the opinions and conclusions expressed are substantially based on their specialised knowledge which is in turn based on training study or experience (cf HG v The Queen (1999) 197 CLR 414 at [39]). In these circumstances I have done my best to identify the real ground of each objection having regard to the context provided by the material the subject of the objection.OPINION EVIDENCE Opinion evidence in this Court is now regulated by ss 76 to 80 of the Evidence Act1995 (Cth). Those sections are in part as follows:“76.(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.…77.The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.78.The opinion rule does not apply to evidence of an opinion expressed by a person if:(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.79.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.80.Evidence of an opinion is not inadmissible only because it is about:(a)a fact in issue or an ultimate issue; or(b)a matter of common knowledge.”THE BASIS RULE The Law Reform Commission (the Commission) in its 1985 Interim Report No 26 Evidence vol 1 par 161 described the status of opinion evidence based on material that is not already admitted into evidence as “a matter of some controversy”. The Commission referred to cases supporting the existence of what it called “the basis rule”, but noted that they were at odds with the High Court’s view in Ramsay v Watson (1961) 108 CLR 642 at 649 that the consequence of not proving the factual basis for an expert’s opinion is that the opinion may be of “little or no value, for part of the basis of it has gone. Each case depends on its own facts”. The Commission then referred to Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 where Blackburn J, dealing with an anthropologist’s report, said that the matter was one of weight rather than admissibility. In another part of its Report (vol 2, Appendix C par 107) the Commission said of Milirrpum:“[Blackburn J’s] approach, therefore, seems to be that if it is the usual practice of experts in a certain area to inform themselves by means of reliance upon the statements of others, or perhaps even upon the work and opinions of others, then those statements and that work should be accounted as sufficient to form the basis of the expert’s opinion. However, the absence of admitted evidence of the basis for the opinions will go to weight, not admissibility.”The Commission concluded that there was uncertainty as to whether the basis rule operated as a criterion of admissibility or went merely to weight.

Decision

Reasons for decision

SUNDBERG J
Subject to the application of ss 135 and 136, hearsay material on which an expert’s opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion (“a purpose other than proof of the fact intended to be asserted by the representation”). If it qualifies, it can then be used as proof of the fact intended to be asserted. That is the view that has been taken in relation to expert evidence in Daniel, Quick v Stoland, Lardil and Harrington‑Smith v Western Australia (No 7) [2003] FCA 893. See also Welsh v The Queen at 368 and Lee v The Queen at 604. The weight to be accorded to that evidence is a matter for the court.CONCLUSION ON BASIS AND EXPERT HEARSAY It will be apparent from what I have said that:·the opinion provisions of the Act do not incorporate a basis rule requiring the facts upon which an opinion or conclusion is based to be established by admissible evidence·the weight to be accorded an opinion or conclusion that is founded on a fact that is not established by admissible evidence may thereby be reduced·while the Act does not contain a basis rule in the sense described above, the fact that hearsay material may lie behind facts ascribed or assumed does not spell inadmissibility; rather it goes to the weight to be accorded the expert’s opinion or conclusion·an expert’s opinion that is based on hearsay is admissible under s 60 in proof of the fact intended to be asserted, though the weight to be accorded the opinion may be reduced by the hearsay quality of the material, and the hearsay material or the opinion may be excluded under s 135 or s 136·remote hearsay is not admissible under s 60 in proof of the fact intended to be asserted.OTHER OBJECTIONSNo primary evidence It is apparent from the Group 2A respondents’ objection document as a whole that this is a complaint that the claimants did not give evidence supporting the experts’ conclusions or opinions. In relation to some passages the applicant and the respondents were in disagreement as to whether there was supporting Aboriginal evidence. It is appropriate to resolve such a dispute in final submissions rather than on an objection to admissibility. In any event, even if there was no supporting Aboriginal evidence, that does not result in the exclusion of the experts’ evidence. As I have said, the Joint Report was filed before any Aboriginal evidence had been heard. The intent behind Lee J’s order was that the Aboriginal evidence would be later in time. It was nevertheless contemplated by the order that the Joint Report would be used in evidence. In those circumstances, I reject the submission that parts of the Joint Report must be excluded because they are based on data then available to the experts rather than on evidence that did not exist when it was compiled. The weight to be accorded particular conclusions or opinions may be affected by the fact that there is no Aboriginal evidence to support it. But that is a different matter.Gap filling

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

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