Nudding & Strickland on behalf of the Maduwongga People v; State of Western Australia

[2002] FCA 934

FEDERAL COURT OF AUSTRALIA

Nudding & Strickland on behalf of the Maduwongga People v
State of Western Australia [2002] FCA 934

NATIVE TITLE – method of testifying in native title litigation – “joint” testimony – statements from a group of witnesses – statement by a witness after the witness has consulted with others

PRACTICE AND PROCEDURE – native title – method of testifying – “joint” testimony – statements from a group of witnesses – statement by a witness after the witness has consulted with others

Native Title Act 1993 (Cth) s 82
Evidence Act 1995 (Cth) s 21
Federal Court Rules O 78 r 34

ANNE JOYCE NUDDING AND MARJORIE MAY STRICKLAND ON BEHALF OF THE MADUWONGGA PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS – WAG 76 OF 1997

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS
ON BEHALF OF THE WONGATHA PEOPLE v THE STATE OF
WESTERN AUSTRALIA & ORS – WAG 6005 OF 1998

LINDGREN J
23 JULY 2002

KALGOORLIE

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY		WAG 76 OF 1997
BETWEEN:	ANNE JOYCE NUDDING AND MARJORIE MAY STRICKLAND ON BEHALF OF THE MADUWONGGA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS
JUDGE:	LINDGREN J
DATE OF ORDER:	23 JULY 2002
WHERE MADE:	KALGOORLIE

THE COURT ORDERS THAT:

The motion brought by “Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga Claimants” by notice of motion filed in proceeding WAG 6005 of 1998 on 18 July 2002 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6005 OF 1998

BETWEEN:	RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS
JUDGE:	LINDGREN J
DATE OF ORDER:	23 JULY 2002
WHERE MADE:	KALGOORLIE

THE COURT ORDERS THAT:

The motion brought by “Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga Claimants” by notice of motion filed on 18 July 2002 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 76 OF 1997

BETWEEN:

ANNE JOYCE NUDDING AND MARJORIE MAY STRICKLAND ON BEHALF OF THE MADUWONGGA PEOPLE
APPLICANTS

AND:

THE STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6005 OF 1998

BETWEEN:

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE
APPLICANTS

AND:

THE STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS

JUDGE:	LINDGREN J
DATE:	23 JULY 2002
PLACE:	KALGOORLIE

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. The Court is hearing an application by Ron Harrington-Smith and others on behalf of a native title claim group called “the Wongatha People” (“the applicants”).  There are many respondents in the proceeding.  They are divided into groups.  Group 4 comprises various native title claim groups other than the applicants which seek native title determinations in respect of areas which are within, or overlap, the boundaries of the area the subject of the Wongatha application (“the overlap areas”).  The Court is also contemporaneously hearing those other applications to the extent that they relate to the overlap areas.

2. One of those respondent native title claim groups can be referred to as “the Maduwongga People”.  The Maduwongga proceeding is proceeding WAG 76 of 1997.  The applicants in that proceeding are Anne Joyce Nudding and Marjorie May Strickland.  They are sisters.

3. Today the Court is commencing to hear evidence in support of the Maduwongga application in so far as its area overlaps the Wongatha claim area. 

4. Ms Strickland and Mrs Nudding “on behalf of the Maduwongga Claimants” have brought a motion seeking leave to testify in a special way.  The notice of motion is filed in the Wongatha proceeding, but, for the reasons mentioned, in substance, the motion is also brought in the Maduwongga proceeding.  I will refer to the terms of the notice of motion below.

   TESTIMONY RÉGIME TO DATE

5. The Court sat for four weeks in March 2002 and is currently in the sixth week of a seven week tranche of hearing dates.  Fifty-six witnesses have already testified. 

6. Pursuant to directions made before the hearing commenced last March, “substances” of the evidence to be given by their early witnesses were filed and served on behalf of the applicants.  For reasons which I need not recount, at that stage all parties desired that testimony be given orally, rather than in prepared written form, whether by affidavit or written statement.

7. After the testimony of the first two witnesses was heard in March it became clear that there were problems with that procedure.  The respondents complained that the substances of evidence that had been served were insufficiently informative and that oral evidence strayed far from them.  As well, the giving of the whole of a witness’s evidence orally in response to non-leading questions proved to be very time consuming.  Accordingly, I directed a different régime which has operated in respect of all subsequent witnesses.  In accordance with that régime, statements of evidence have been filed and served and the respondents have had the right, which they have exercised, to notify the applicants in writing in advance of the hearing, of those parts of the statements on which they required evidence to be led orally.  As to those parts, the reading of which has been objected to by the respondents, counsel has led testimony from the witness on the subject matter of those parts, in response to non-leading questions.  As to the remaining parts, counsel for the applicants has read them to the witnesses and obtained the assent of the witnesses to them.  Even as to those parts, counsel has sometimes elicited oral evidence elaborating on them and sometimes the witness has volunteered qualifications or additions. 

8. The régime just described has obviated the need for the taking of, and debate and ruling upon, evidentiary objections to the statements although, of course, it has not done so in relation to the testimony adduced by the asking and answering of questions.

9. The procedure outlined has now been followed in respect of fifty-four witnesses.  It has meant that their testimony has been given more efficiently than was that of the first two witnesses. 

   THE MOTION AND SUPPORTING AFFIDAVIT

10. By the notice of motion, which was filed on 18 July 2002, Ms Strickland and Mrs Nudding move the Court, purportedly pursuant to O 78 subr 34(1) of the Federal Court Rules (“the Rules”), for orders that:

    “1.Anne Joyce Nudding and Marjorie May Strickland do have leave to give evidence jointly in this matter on 23 July 2002 and from day to day thereafter, or alternatively, that

    2.Anne Joyce Nudding and Marjorie May Strickland do have leave to give evidence in consultation with one another in this matter on 23 July 2002 and from day to day thereafter.”

11. Contrary to the assumption implicit in proposed order 1, witnesses cannot testify “jointly”.  A witness can testify only as an individual. 

12. I have occasionally encountered affidavits sworn by two people.  But even in the case of that bad practice, the proper analysis is that each deponent is severally swearing or affirming as to the truth of the content of the affidavit.  If this were not so, that is, if each deponent could not be seen to have pledged his or her oath or affirmation to the truth of the content of the affidavit, that document would not be the vehicle of admissible evidence (see [19] and [26] below).

13. The motion was supported by an affidavit of Ronald William Bower of Corsers, the solicitors for Ms Strickland and Mrs Nudding.  Annexed to his affidavit was a copy of a statement of their evidence.  The document is divided into three columns, the first being a statement of evidence proposed to be given by Ms Strickland alone, the second being a statement of evidence proposed to be given by Ms Strickland and Mrs Nudding “jointly”, and the third being a statement of evidence proposed to be given by Mrs Nudding alone.  The paragraphs in the three columns were organised according to an integrated chronological sequence, so that all the respective paragraphs in the joint column are to be read into the respective statements of each individual at the appropriate chronological position. 

14. Clearly, what was intended in relation to the “joint” column was that each witness would give evidence to the effect of that column.  The document could just as well have been separated into two statements, with all the paragraphs of the “joint” column interspersed throughout.

15. According to para 4 of Mr Bower’s affidavit, Mr Bower is informed by Ms Strickland and Mrs Nudding and believes that the portion of the document which represents the evidence to given jointly:

    “… are matters upon which they each believe that they can give the most clear and accurate oral evidence if they are able to sit together, confer together and each make statements, one following the other, in answer to counsel’s questions.”

    According to para 5 of his affidavit, Mr Bower is informed by Ms Strickland and Mrs Nudding and believes that:

    “… Mrs Nudding in particular expects to have difficulty, and possibly to be unable to give the best oral testimony about the matters covered by the outline of the proposed joint evidence unless she can sit with her sister Ms Strickland and ask for her assistance and reassurance from time to time.”

16. The first observation to be made about the affidavit evidence to which I have referred is that similar statements to those contained in paras 4 and 5 of Mr Bower’s affidavit are often applicable where two or more witnesses have knowledge touching the same subject matter.  Husbands and wives, the occupants of a motor vehicle involved in a collision, co-workers, and other instances in which there are multiple witnesses to the same event or series of events come to mind.

17. In these circumstances it would be surprising if anything in the legislation to which I am about to refer empowered me to allow witnesses to testify in a special manner for no more reason than those mentioned.

    LEGISLATION

18. Section 82 of the Native Title Act 1993 (Cth) (“the Act”) provides as follows:

    “82(1)       The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

    …

    (2)       In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.”

    The form of s 82 of the Act was different prior to 1 October 1998. In its earlier form, the section required the Court to take into account cultural and customary concerns, and the rules of evidence did not apply. 

19. Subsection 21(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides as follows:

    “A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.”

    Subject to the presently irrelevant exception allowed in subs 21(2), without a prior oath or affirmation, a person’s testimonial statement is not the probative evidence of a witness in this Court.

20. Order 78 of the Rules deals with “Native Title Proceedings”.  Subrule 4(1) provides as follows:

    “At any time in a proceeding, the Court may give the directions and make the orders it considers appropriate to take account of the cultural or customary concerns of a party to the proceeding or another person.”

    This provision reflects subs 82(2) of the Act set out above.

21. Order 78 r 34 of the Rules, the provision under which the motion is purportedly brought, provides as follows:

    “(1)The Court may, if it considers that in all the circumstances it is in the interests of justice to do so, receive into evidence statements from a group of witnesses, or a statement from a witness after that witness has consulted with other persons. 

    (2)If a statement is made by a witness after consultation with other persons, the identity of the persons may, at the direction of the Court, be recorded in the transcript.”

    I discuss O 78 r 34 of the Rules below.

    REASONING

22. Counsel does not seek to support the motion on the basis of O 78 r 4 of the Rules, but does so on the basis of O 78 r 34, submitting that in all the circumstances it is in the interests of justice, because of the matters stated in Mr Bower’s affidavit, that the orders sought be made. 

23. Shortly, I do not think it is in the interests of justice to make either order sought because I think it is in the interests of justice that the Court be able to understand the extent of each witness’s own knowledge and recollection in the usual way, without the contamination of consultation.  For this reason the motion should be dismissed.

24. It was submitted that I should not make orders allowing a departure from the régime described earlier because this would cause an injustice to the parties whose witnesses have already testified in accordance with that procedure.  It has been submitted in reply that those parties could have moved for such orders in respect of particular witnesses called by them, and that their omission to do so should not now tell against Ms Strickland and Mrs Nudding.  It has been said in response that Ms Strickland and Mrs Nudding should have brought the present motion earlier when the régime for witness statements was being debated and resolved.

25. I do not rely on the consideration mentioned.  It is mere speculation that a departure from the ordinary régime might have been relevant to any earlier witnesses.  If I were convinced that it was in the interests of justice to permit such a departure in the case of Ms Strickland and Mrs Nudding, I would do so. 

26. I have already stated why the motion should be dismissed but add the following observations. Order 78 subr 34(1) of the Rules contemplates the reception into evidence of “statements” (in the plural) from a group of witnesses, or a statement (in the singular) from a witness after that witness has consulted with other persons. In either case, the statements or statement must be sworn or affirmed: cf subs 21(1) of the Evidence Act set out earlier. The provision does not allow for the reception into evidence of a statement (in the singular) from a group. The provision has the effect of requiring that, even in the case of the reception into evidence of statements from a group of witnesses, the statements will be identifiable as those of respective individual members of the group who testify on their oath or affirmation. The purpose of the subrule is to allow consultation. Accordingly, even in the case of a “group of witnesses”, the statement of each member of the group who is to testify as a witness, that is, under oath or on affirmation, is identified and attributed to that witness, even though he or she has been permitted first to consult with another member or other members of the group.

27. What I have said should not be thought to reduce the utility of O 78 subr 34(1) of the Rules. In the first place, consistently with what I have said, in an appropriate case, the Court might permit witnesses to stand or sit as a group while testifying. Secondly, the Court might permit those members of a group who are to testify all to be sworn at the outset and counsel for the party who calls them to question them, switching from one to another, rather than questioning one witness to conclusion before questioning the next one (cf s 26(a) of the Evidence Act). I cannot, however, conceive of circumstances in which the Court would require the cross-examiner to do likewise: the cross-examiner should be allowed to question each witness to conclusion in the usual way, or, apparently, to do as the examiner-in-chief has done, at the cross-examiner’s option (cf subs 29(1) of the Evidence Act). Thirdly, where the Court allows consultation, the person consulted is not, by reason of having been consulted, a witness and is therefore not required to be sworn.

28. I see no inconsistency between what I have said above and the following observations recently made by the Chief Justice in relation to O 78 r 34 of the Rules:

    “The rules of the Federal Court provide that group evidence may be admitted in native title claims. This is unique to such claims.  [The reference is to O 78 r 34 of the Rules.]  Generally, the rules of evidence allow for evidence to be taken only from individuals, although some commentators have noted that the practice of submitting written evidence by affidavit may well involve contributions by more than one person. In native title claims, however, oral evidence given by a number of witnesses at once, or by a witness in consultation with other persons, may be admitted, and the names of people consulted during the giving of the evidence may, at the direction of the court, be recorded in the transcript. This rule was developed by the court in recognition of the fact that within many Aboriginal communities not every person is able or willing to speak about their country, and that to do so without authority from others may be very wrong. The practice was developed in hearings under the Land Rights Act, and is a recognition that the traditional expectations of the Australian legal system about the giving of evidence cannot be assumed to be appropriate to Aboriginal evidence of traditional rights and interests in land. This represents a significant change to the assumptions about evidence that the common law-based legal system has previously made.” (The Hon Michael Black AC, “Developments in Practice and Procedure in Native Title Cases” (2002) 13 Public Law Review 1 at 7)

29. In the present hearing, I have freely permitted witnesses, particularly elderly ones, to have sitting near them another person for “moral support”.  That will be the case with Ms Strickland and Mrs Nudding.  If a time is reached where there is a particular matter in respect of which counsel for the one who is giving evidence at the time wishes to seek leave to have her consult with her sister, that application can be made and will be dealt with on its merits at that time. 

30. Testimony of two or more witnesses in identical terms is always problematical.  The inference will often be open that the testimony does not represent the spontaneous and unaided knowledge and recollection of each witness.  Accordingly, it will be proper to reduce the weight to be accorded to the testimony of one or each of the witnesses.

31. Several respondents have indicated that they would have no objection if the parts of the “joint” column in the document to be read out to the witnesses for their assent, were read out only once.  The procedure by which this would be achieved poses difficulty but, no doubt, one can be devised.  I would agree to the course mentioned on one condition:  that counsel will not ask either witness to elaborate on any of those parts.  If that condition is not acceptable, and I should say that to date counsel for the applicants has been taking advantage of the right to invite witnesses to elaborate on those parts of their statements not designated for oral testimony, I would require such parts to be read over to each witness in her turn and put to her for her assent in the usual way. 

32. It may ultimately be found more satisfactory, as a practical matter, if this course is followed.  It permits the testimony of each witness to be self-contained and the parts to be read at their proper place in each witness’s narrative.

    [Counsel subsequently indicated that he would follow the course last mentioned.]

    CONCLUSION

33. For the above reasons, the order of the Court is that the motion be dismissed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             2 August 2002

Counsel for the Applicants:  Mr S Walker
  Mr P Vincent

Solicitors for the Applicants:  Goldfields Land and Sea Council

Counsel for the Group 1 Respondents              Mr V Hughston SC
(State of Western Australia):  Mr J Waters

Solicitors for the Group 1 Respondents            Crown Solicitor’s Office
(State of Western Australia):

Counsel for the Group 2 Respondents              Ms R Webb
(Commonwealth of Australia):

Solicitors for the Group 2 Respondents            Australian Government Solicitor
(Commonwealth of Australia):

Solicitor for the Group 3 Respondents              Mr F Van der Kooy of Minter Ellison
(Local Government Interests):

Counsel for the Group 4A Respondents  Mr G McIntyre SC
(Maduwongga Native Title Claimants):

Solicitors for the Group 4A Respondents  Corsers Barristers and Solicitors
(Maduwongga Native Title Claimants)

Counsel for Group 4B and 4C Respondents                 Mr D Parsons SC
(Cosmo Newberry Native Title Claimant Group):

Solicitors for Group 4B and 4C Respondents               Ngaanyatjarra Land Council
(Cosmo Newberry Native Title Claimant Group):

The Ngalia Kutjungkatja and Ngalia
Kutjungkatja 2 Native Title Claimant Groups
were not legally represented

Counsel for the Group 5A Respondents  Mr G Hiley QC
(WMC Resources Ltd Group):

Solicitors for the Group 5A Respondents  Ms J MacPherson of WMC Resources Ltd

(WMC Resources Ltd Group):

Solicitor for the Group 5B Respondents  Mr M McKenna of Hunt & Humphrey
(Barrick Gold Corporation Group):

Counsel for the Group 6A Respondents  Mr G Donaldson
(Pastoralist Interests):  Mr J Thompson

Solicitors for the Group 6A Respondents  Blake Dawson Waldron
(Pastoralist Interests):

Date of Hearing:	23 July 2002
Date of Judgment:	23 July 2002