Watson v The Queen

[1988] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B38 of 1986

B e t w e e n -

GLEN MAURICE WATSON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

Watson

MASON CJ

WILSON J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 1 JULY 198~.iT 9.37 AM

Copyright in the High Court of Australia

1/7/88

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MR T. O'DONNELL:	If Your Honours please, I appear on behalf of the applicant, Watson. (instructed by Madden &
Co.)
MR P.G. NASE:	May it please the Court, I appear on behalf

of the respondent. (instructed by Director of

Prosecutions)

MASON CJ:	Mr O'Donnell.
MR O'DONNELL:	If Your Honours please, I hand up copies of the summaries of the applicant's arguments.

MASON CJ:	Thank you.	Yes.
MR O'DONNELL:	Thank you, Your Honours.	As Your: 'Honours

would see from that summary there are three points

that I have to cover. The first, of course, is

that on 28 January 1988 the applicant formerly

abandoned his application for special leave to

appeal. I would seek to read the affidavit in

relation to that of James - - -

MASON CJ:	There is no occasion to read it.
MR O'DONNELL:	Yes, thank you.
MASON CJ:	I think you can proceed to the substance of your submissions.

MR O'DONNELL:  Yes, thank you, Your Honour. The situation

in relation to the abandonment of appeal is that

because the applicant was left without public

defence as a result of legal opinion the situation

was that the application remained in limbo for

a considerable period of time and that in the

interim time there was a second opinion given in

relation to the merits of the application. There

was a further article, which I have referred

Your Honours to, by Mr Freckelton in the Australian

Bar Review.

MASON CJ:  Yes, we have seen that. I think you may approach

the matter at the point of special leave.	I think
you can proceed to that point.

MR O'DONNELL:  Yes, thank you, Your Honour. In relation

to special leave, Your Honours, I would submit
that this is a significant matter from the point

of view of any person who finds himself in a

culturally different situation in an ethic minority
where a jury is to assess such questions as his

intent or his motive and that it would be my

submission that that is an important point of view

from that section of the Australian community,

those who are in minorities who are culturally

different. There is also, in my submission, the

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added feature that there is the difference of

approach, if not a conflict, between the Court of
Criminal Appeal in Victoria in YILDIZ's case,

which is the case referred to in the Australian Criminal Reports, and the attitude taken by the

Court of Criminal Appeal in Queensland to evidence

of intent in WATSON's case. In YILDIZ's case,

Your Honours - the case is with Your Honours, handed up yesterday - the prosecution was allowed

to lead evidence of Turkish attitudes in the

Turkish community by inference in Melbourne towards

passive homosexuals, that being led by the Crown

in relation to the accused's motive.

In that case the Court of Criminal Appeal

supported the trial judge who took the view that

the evidence of community custom.within the Turkish
community as it approached, particularly the

passive partner to a homosexual relationship, was

something that was outside the province of a jury

in normal terms. They were allowed to call evidence

in relation to custom, that evidence being from,

simply, a member in that community. The situation was that although there was a challenge mounted to

his expertise the Court of Criminal Appeal in

Victoria came to the simple conclusion that that subjective evidence was admissible and relevant and

was such that it would assist the jury and the

appeal was dismissed. In that case the Crown was

allowed to lead evidence of custom and culture in

relation to motive in the prosecution case.

It would be my submission that there is a

significant difference between.the attitude of

the two Courts, in YILDIZ and WATSON, such that

two Courts of Criminal Appeal are,. essentially,

in conflict. I should indicate to Your Honours
that when WATSON was first reported in the Queensland

Reports the headnote indicated that YILDIZ's case has, in fact, been followed. But, it would be

my submission, in relation to the judgment of

the Court of Criminal Appeal in WATSON that

Mr Justice Dowsett is effectively in dissent in that matter in relation to the relevance of the evidence and, therefore, its admissibility. He is in conflict with the two members of the majority

who took the more simple view that the evidence

was not relevant and not admissible, it being a

matter within the common knowledge of the jury.

So in that sense, Your Honours, it is my submission

that YILDIZ has not been followed and there is, in fact, a difference of opinion in relation to

a significant matter between two supreme courts

within Australia.and it is a matter which, I would

submit to Your Honours, is one worthy of resolution.

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That, essentially, is the argument in relation to special leave.

DAWSON J:  In YILDIZ's case the evidence was relevant because

it gave rise to a motive that was suggested to.

That is not this case, is it?

MR O'DONNELL:  No, Your Honour. This case is in relation

to the subjective intent of the applicant.

DAWSON J:	Yes.
MR O'DONNELL:	In this case the applicant pleaded guilty

to manslaughter before the jury and the only issue

for the jury to determine was, in fact, his intent.

DAWSON J: And he was able to give evidence that he intended

merely to inflict a cut? ;

MR O'DONNELL:  Yes, he was, indeed. But he was not allowed

to support that evidence by evidence of an expert

nature in relation to the - perhaps the fragmented

culture of Palm Island. I would submit that that

is indeed a culture that has in fact been the subject

of study and that the proposition that was to be

put was not fanciful.

DAWSON J:  How would that assist the jury in coming to its

conclusion when he said that he only intended to

inflict a cut? In fact, a far greater wound was

inflicted and the jury either believed or disbelieved

that looking at the evidence as a whole?

MR O'DONNELL:  Well, the jury, with respect, Your Honour,

only had the opportunity to see this Aboriginal

person give evidence and be cross-examined on the

one occassion. It would be my submission that

in the line of such cases as MASTERS, which I have

referred Your Honours to, that the jury would be

entitled to be assisted by further evidence if it

was, indeed, relevant and admissible.and that an

accused person should not be prohibited from calling

such evidence if it is relevant and admissible,

if it assists the jury in forming a realistic

assessment of what his intent was.

DAWSON J: Well, that is the question, is it not, whether

it assists? In some circumstances you could see

that this type of evidence might assist but here

where you have a physical act which is describable

in itself, does it assist in ascertaining the nature

of that physical act to have regard to the sort

of evidence you say should have been admitted?

MR O'DONNELL:  Yes, Your Honour, I submit that it does on

the basis that not only was there the question of

the physical nature of the wound, it being a single

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wound, there was the evidence of some confusion

of, I think, three or four eyewitnesses. There

was also the clear evidence that both the deceased

and the applicant were intoxicated to a significant

degree on an overall view of the facts. There had

been physical contact between them and the possibility

of both intoxication and accident was the subject

of His Honour surm:ning up a trial. It would be

my submission that it would be unfair - or it

was unfair to the applicant in a real sense not

to allow what was, essentially, a white European

jury, to become more fully appraised of the background

in which that intent was formed.

DAWSON J:	Really the defence was, was it .not, "I only intended to cut her but because I was drunk I
mistook what I was doing and. inflicted a far
greater wound."
MR O'DONNELL:	Yes, Your Honour, that is exactly the defence.
DAWSON J:	One does not have to have regard to Aboriginal

customs to arrive at a conclusion in those

circumstances, does one7

MR O'DONNELL:  With respect, Your Honour, to arrive at a

conclusion.

DAWSON J:	Well, even a proper conclusion.
MR O'DONNELL:	But, in fact, that may not be the correct

conclusion, it may not be the conclusion that
could be fairly drawn if all the evidence was heard

that the applicant could deduce. That, essentially,

is the argument and, in relation to that, perhaps,

if I could traverse the merits while discussing
the problem of application for special leave -

the last lines in the English case of SKIRVING

where expert evidence was called in relation

to the effects of obscene literature. In that

England found that the jury may have been	case, I think, the Court of Criminal Appeal in	incapacitated from forming a just and safe view
of the issue without such evidence and that is essentially the point, that the jury may not have been able to come to a just and safe view of the
evidence without all the evidence that the accused
could properly put if it was relevant and
admissible. As I have indicated to Your Honours
that proposition was, again, recently canvassed
in the Court of Criminal Appeal in Queensland
in MASTER's case. I refer Your Honours,particularly,
to the judgment of Mr Justice Thomas at page 275 where he indicates that in that particular case - that was a case, as I recall it, where an accused hit someone over the head with a piece of wood and

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then wanted to go into the background state of his

knowledge in relation to the violence of that

person. Mr Justice Thomas,on appeal,said that

he was entitled to call evidence of his knowledge

of that person and to call evidence in support of that proposition, indeed. While I have not cited

it there is a case which may be even stronger

coming from the Full Court of the Supreme Court

of Victoria in relation to a petition of mercy,

KNOWLES, which I recall was in 1985 or thereabouts

the Court allowed an accused person to call

evidence of things that were unknown to him, in

a sense, to background a proper defence by himself;

he was saying that it was self-defence.

The deceased in that case had a propensity to violence which is completely unknown to the

accused and the Court, on a petition of mercy,

said that he was entitled to present that evidence

of propensity as a background to his defence of

self-defence. It would be my submission that those

sorts of background issues, whether they be propensity

or culture or anything that is properly admissible

and relevant, an accused is entitled to the assistance

of those in support of his case. His case cannot
be simply truncated because a jury could come to
a conclusion with or without it and that, in essence,

is the heart of the argument.

DAWSON J:  But those cases go to establishing - or the

evidence in those cases goes, in one way or another,

to establish the relationship between:the accused

and the victim and, of course, very often that is

relevant. But in the particular circumstances

of this case is that relevant?

MR O'DONNELL:  Again, I would submit that the most difficult

thing that a jury can come to terms with is a

subjective issue such as motive or	intent and,
it would be my submission that there is no

substantial difference, philosophically, between

the two subjective propositions, that they are both- in terms of what can be within the common

knowledge of a jury. If a jury is sitting in

judgment of one of its peers from a similar cultural

background one could fairly say that the jury is

in a position from its own common knowledge to

make such a judgment. The heart of my submission

is that the jury in this case was not judging one

of its peers, it was judging somebody, as in YILDIZ,

who was culturally different and that it could,

therefore, not, as part of its reasoning process,

rely on the normal fund of common sense that is

expected of a jury in reaching a conclusion, that
the fund of common sense would have applied to a

person who was not part of that ethic minority or

who was not Aboriginal or who was not separate.

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DAWSON J:  Is it not more likely that the jury concluded,

and properly concluded, that the accused in this

particular case had an intent which went beyond

merely inflicting a minor wound by reason of

what he actually did?

MR O'DONNELL:  Yes. I admit, Your Ho11our, that that was

a perfectly proper inference that could be drawn

from the evidence.

DAWSON J:  And having regard to what he actually did

evidence of a cultural background really would

not assist.

MR O'DONNELL:  Well, that is the whole point, in my

submission, Your Honour, that it would and that

he is being unfairly deprived of having that

put to the jury and considered by them when
considering matters such as the gravity of the

wound, the intoxication and the likelihood of

an accident that caused a greater injury than was

intended. Those things are quite clearly within

the connnon ~nowledge of a jury and there should be no

expert evidence introduced to ·try and sway what

is a common sense approach to that.

(Continued on page 8)

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MR O'DONNELL (continuing):  But in my su½mission, the

other aspect which he was entitled to canvass

is something that the jury could not really

have known about. And just in relation to that,

Your Honours, if I could refer Your Honours

to a judgment of the Court of Criminal Appeal

in KATHLEEN JEAN BULMER AND OTHERS, (-1987) 25 ACR.

At page 158, His Honour in an Attorney-General's

appeal against adequacy of sentence said - and

this was after he had been the trial judge in

WATSON:

The cases of these three men

require consideration of a further

factor. It is apparent that in

each case they considered that they

had a right to use a knife as a

means of disciplining the child in

the one case and the women in the

other. It is becoming apparent that

some such notion may be quite widespread

amongst people of Aboriginal and

Torres Strait Island descent.

He then referred directly to WATSON which was

at that stage unreported and he fairly went on

to say that in terms of imposing a penalty that

that was the sort of thing which should not be

encouraged to remain as part of a vestigial culture.

But that does not say that it was not there at

the time and it was not part of the background

against which the applicant confronted the deceased.

And in relation to that the Court of Criminal

Appeal in its judgment before the comments in

BULMER's case referred to the RACIAL DISCRIMINATION

ACT and suggested that that was there to protect female members of the Palm Island community who

Palm Islanders may erroneously believe to be

subservient and subject to physical and illegal

discipline. And it would be my submission in

relation to that, and perhaps that is a matter

that ought to be ruled on also, that that is

closing the door after the horse has bolted -

that the deceased woman who would have previously

required protection is dead and that the only issues that are

then relevant are the - in s_ay WATSON' s case where

he has pleaded guilty to manslaughter before the

jury, the only issue would be his intent and his
culpability and that the protection of the deceased

is an issue that would have arisen against the

whole background of such a, perhaps, misinformed

proposition.

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DAWSON J:  Mr O'Donnell, it seems to me there might be two

things involved here.	You are complaining about the
refusal	to admit the evidence of the expert, is
that right?

MR O'DONNELL:	Yes.
DAWSON J:	The accused himself was not given the opportunity

to say why he intended to inflict a cut,was he?

MR O'DONNELL:  Yes, that is correct, Your Honour.

DAWSON J: The two types of evidence fall into different

categories, do not they?

MR O'DONNELL:  They go to the same point, of course: one being expert

~nd the other coming from the accused's own mouth.

DAWSON J:  Perhaps they do not. The accused saying it himself,

that he held this belief, may be one thing going to

intent, but the evidence of the expert in that

circumstance is very much like evidence as to credit -

that is evidence to bolster the accused's credit

on that point. And if that is all it ~oe~, well then

one can see why it is perhaps not adm1ss1ble. ·

MR O'DONNELL:  Yes, again in relation to that, I suggest that

it does go further than that in the same way that

Mr Justice Thomas pointed out in MASTERS' case,

at page 275 .

TOOHEY J: Just before you go to that, Mr O'Donnell, I wonder

is your answer to Justice Dawson,as to what the

accused himself was permitted to say,correct? If

you look at what the trial judge ruled,and it appears

in various places in the appeal book, take page 136

for instance, about line 16, in the context where

His Honour was ruling on the admissibility of the

evidence that was sought to be adduced, he said:

I rule that he may give evidence

of what was in his own mind, that is to

say, of what intention he himself had,

and he may go so far, if that is what

he intends to do, as to say that this is
what he understands you do if your woman

will not obey you, and that is it.

So the applicant was given a fair range of matters

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as to which he himself could depose, but in fact

he did not as I understand the evidence.

MR O'DONNELL: Yes, there was a further point of clarification

as I recall and I - - -

TOOHEY J: Is it clarification of the ruling?

MR O'DONNELL:  Yes, Your Honour, I may have indeed been

misled by thar.. It is referred to also by

Mr Justice Dowsett in his decision, I am just trying

to find it,at first instance. As this occurred,

Your Honours, the case for the defence was opened

and an objection was taken to the evidence as

opened by the prosecutor and there was argument in

relation to that and some of that does not appear

in the appeal books and I refer specifically to the

affidavit of Mr Bevan in relation to that. - it

was argued that the accused had been raised as a

dormitory child, separately from his parents, and

that his sister had been the subject of an extensive
test case in relation to th~interrogation of

Aboriginal suspects.

TOOHEY J: But I am not sure what you are saying, Mr O'Donnell?

Are you saying that the ruling that is referred

to on page 136 as to the evidence that your client

himself might give was later withdrawn or qualified

in some way?

MR O'DONNELL:  Yes, I may have been, in a sense, over'.-sirnplifying

what was being said at the time, but on the first

evening of the trial His Honour indicated to me

that nobody would stop anyone trying to lead evidence

of that nature if it gave them any satisfaction.

At page 50, His Honour, on the first evening of the

trial, said:

Nobody will stop you or him, or anybody else if you have a witness to say it, from

men to take knives to their womenfolk if	saying it is the practice of Palm Island
they think it is appropriate. I don't
know whether it gives anybody pleasure to
hear it or not.

So that was the state of His Honour's ruling as at

the close of the first day of the trial. After· the

Mr Walkley 'lnd after His Honour ruled in relation to	defence opened the Crown objected to the evidence of
that, I have said t_o Your Honour at page 61:

So Your Honour would not allow evidence

other than his personal evidence in

relation to his intention?

And His Honour said, "Yes".

10

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TOOHEY J: Yes, but that is really the point that I was making,

that that part of the ruling, to which I referred,

was not concerned with the evidence of others but

with the evidence that the accused himself might give.

And in that respect, His Honour was prepared to

allow the accused to give evidence of what was in

his mind including what assertions he might choose

to make in regard to any rights that he thought he

might have vis-a-vis the woman with whom he was

living?

MR O'DONNELL:  Your Honour, he had in fact done that in his

admissions,as best he could, to

Sergeant Joyce which are at page 6 of the transcript

and -

DAWSON J:  One can appreciate the difficulty, but he simply

did not give that evidence,did he?

MR O'DONNELL:  In a sense he did, as best that he could. I

mean it is analogous to asking someone who is having

a problem with a problem child to give evidence in

relation to child psychology. He or she may not know

why the relationship has broken down between the
person who gives evidence and the problem child.
In a sense that is the case with anybody who may,
in a.completely foreign atmosphere to such a person,
have to verbaliz·e simple concepts that he may never

have given consideration to verbalizing and that is

the sort of problem that was obviously faced. Tt may

n~r ~ave been, without giving evidence from the bar

table, it may not have been possible to even elicit

such evidence from the person because he is not

capable of giving it, despite the fact that he acted

from an underlying acceptance of his own culture.

DAWSON J:	One can appreciate the difficulty, but it is then very difficulty to see what ground is laid, even if
there could be ground laid, for calling the expert in those circumstances?

MR O'DONNELL:  It would be my submission to Your Honours that

the ground was in fact laid within the Crown case itself -

within the admissions made to Sergeant Joyce recorded

at page 6, when he said:

"Did you threaten her first?" He said,

"No, just stab her."

And Sergeant Joyce admitted that that was not a

word perfect account of the conversation.	He said
that it was -

DAWSON J: What do you get from that?

MR O'DONNELL: It goes on, Your Honour:

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She should have come with me.	She was
my woman.	I said, "Do you know that

you cannot stab people?" He said, "Yes,

but she had to be taught a lesson.	She
was my woman.	She had to do what I say."

Now, the accuracy of that was not asserted in the conceded that they were notes of a conversation made

some time afterwards and that it would be a precis

of his impression as to what he could recall as

between himself and the accused and he made that

concession, so that is the standard of that evidence.

And, in my submission, that, irrespective of whether

he used the word "stab" or "cut", it would be my submission that in the circumstances very little

may turn on that because we are dealing with a person

who is not sophisticated and he has raised that

proposition himself at first contact with the police.

Right at the beginning of the Crown case he has

raised the proposition that she had to be taught a

lesson:

She was my woman.	She had to do what I
say.

That is in fact the heart of what Mr Walkley was trying to lead or what was being proposed to be led

through Mr Walkley and that he would have been in

a position, from his experience of Palm Island, to

enumerate from his experience the proposition that

that was in fact an unfortunately coIInnon occurrence

and it was part of the attitude-· of Palm Island men

to Palm Island women, however unfortunate that may be.

So again, I submit, that he has raised it and it is

probably realistic to say that he could not himself

have shed any light on the proposition given the

sort of person he clearly is from his evidence in-chief

and cross-examination. Therefore, it would be my

submission, that the background evidence is the

there are people who do understand", or I could say	thing that he can say, "Look, this is not fanciful ;
on his behalf "This is not fanciful, there are people
who have experience of that coIInnunity"- and it is a sad one and who know that these things do occur
and what he says is consistent with his own statement
in relation to his intent when he gives evidence
in-chief and under cross-examination. And indeed
the gist of what he first raises with Sergeant Joyce.
All I can say effectively is that he has been
deprived of the opportunity to put that proposition
into a proper perspective with a jury who, almost certainly, would have no background knowledge of
such a proposition and who would take it as being
extraordinary, iIInnoral, something that ought not,
as Mr Justice Connolly said in BULMER's case, be
allowed to continue. But it still would be

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relevant to his intent at the time that he committed

homicide which he pleaded to as a manslaughter. That

is about as far as I can take it Your Honours.

DAWSON J: I suppose you say if he could be allowed to give

evidence of the custom, it being relevanc there is

no reason why someone else should not be alloweq .

to give evidence of the custom, if such a person is available.

MR O'DONNELL:	Yes, there would be no reason why the evidence should come either preferentially, from a person who
may or may not understand it who comes from within
that community,who may have no perception of his
own behaviour or be able to verbalize the perceptions of his own behaviour and someone who is within the
community who can or someone who is an observer of
the community who is equally able to. And anthropoligical
evidence was properly and clearly received in the NABALCO case. There is no reason why it should not
be received and -
DAWSON J:	You are getting on to a question of expertise now?
MR O'DONNELL:	Yes, or comparison between an expert, a member

of the community, as was the case in YILDIZ or
the person himself, if he is so capable of

appreciating and verbalizing his own behaviour. And,

of course, that would be a significant difference

and for that reason I cannot press that particular

point particularly hard but it would be my

submission that from the transcript at the trial

and from the admissions made by Watson to Joyce,

that the sort of person that Watson is shines through

and he may well be only able to be assisted by

dispassionate expert evidence. And I would resist the proposition that this was simply an attempt to

colour up a case to assist a fanciful defence_ that

the evidence was to be led by someone who has

knowledge of the island, who lives locally and has

treated Aboriginal peopl~ as a psychologis4 and has

dealt with them in relation to court appearances

involving violence on many occasions.

:MASON CJ:	Thank you, Mr O'Donnell. Yes, Mr Nase?
MR NASE:	Yes, I have prepared an outline of submissions which

I hand up to the Cour.t. The submission is

that at its very basis, the evidence was inadmissible

as it was founded entirely or substantially on

hearsay interviews. The source of the opinion

evidence appears from the reasons of Justice Connolly

at page 61, line 51, where His Honour said:

he is generalising from certain cases
which he has investigated.

And page 62, about line 4, where His Honour said:

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That evidence of case histories stated

by, I think it was Mr Walkiey, from which

he draws general conclusions, I have
held may not be put before you in this

trial.

DAWSON J: What do you draw from that?

MR NASE:  That the proposed evidence was based on a number

of interviews . and as the evidence proposed to be

given was evidence essentially of a factual

character, intrinsically of a factual character, that

is that there was in fact a current practice

among some people on Palm Island, that was not an

acceptable means of proving such a practice if it

existed.

DAWSON J:	How else would you do it?
MR NASE:	Because it offended the hearsay rule.

(Continued on page 15)

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DAWSON J:	But all expert evidence does that.
MR NASE:	Not this sort of expert evidence, if Your Honour
pleases.  The principal authority on which I
rely is a decision of this Court in RAMSAY V WATSON,
108 CLR 642.

DAWSON J: When I say - most expert evidence, not all.

MR NASE:  No. I draw a distinction between two aspects of the

proposed evidence. One part of his evidence,

it is submitted, was intrinsically factual in

character. That is, when he purported to describe

what, in fact, was a current practice - not,

I would add, a customary law or anything derived from customary law - but a current practice among some people on Palm Island. The other part of

his evidence was certain theorizing but I can

take Your Honours to those passages in a moment.

The submission is that the evidence at

its basis was inadmissible because it offended

the hearsay rule - - -

DAWSON J:  And did not qualify as expert evidence.

MR NASE:  Yes. He was not able to give the evidence because

it was based upon interviews that he had with

the so-called case studies - the interviews that

he had on which it was based.

TOOHEY J:	How would you acquire the necessary expertise in that situation to give the evidence, unless
you were a member of the community yourself?
MR NASE:	One has to look at the opinion~ The opinion that he gave was a very narrow one. It was based,
as it seems, almost entirely upon what he had
been told by a number of people that he interviewed.

TOOHEY J:  I understand that objection and there might

be a further objection, too, that speaking to

a number of men without speaking to a number

of women might lead to a fairly jaundiced view

of what was accepted practice and what was not,

but that is not quite the point you are making

at the moment. You seem to be saying that any

expertise acquired by reason of interview is,

itself, inadmissible.

MR NASE:	No, at the risk of intervening, that is not the
submission.  The submission is that where the evidence
is based entirely or substantially upon hearsay
sources, then it is inadmissible. It is entirely
different from the anthropological evidence that
was given in the various land cases.

BIT3/l/SDL	15	1/7/88
Watson

Perhaps I can illustrate it by RAMSAY V WATSON.

In that case:

A former employee of the Government

Printing Office sued for damages for negligence,

alleging that Bright's disease from which

he was suffering was caused by lead poisoning

contracted whilst he was employed in the

Printing Office.

The printing office, as part of its case, called

a doctor who gave evidence of some 21 men that
he examined - they were fellow employees of the

plaintiff. The doctor said that he found no

signs of lead poisoning on his examinations.

It was also proposed to lead evidence from the

doctor of what the 21 men had told him of their

past medical history and this was intended to

complete the doctor's expression of opinion that

none of the 21 men had suffered from lead poisoning.

On the trial the evidence of the examinations

was admitted but the evidence of what the 21

employees told the doctor was rejected. As in

this case it was clear that it was not proposed

to call any other primary evidence of such a current practice. In RAMSAY V WATSON it was clear it was not proposed to call the 21 employees.

On appeal to the High Court it was held:

that the evidence was rightly rejected -

for the evidence remained hearsay even though it was

proposed to prove it through a doctor.

A similar approach has been adopted in

the Victorian Full Court in REG V HAIDLEY & ALFORD,

(1984) VR 229. If I can simply cite the references

without reading the passages~ Chief Justice Young

at page 234 lines 40 to 45 with whom, on this
aspect, Justice Kaye agreed at page 250 lines 40 to 45,

and Justice Brooking was in agreement with the

reasons of both the Chief Justice and Justice Kaye.

That appears at page 255 on this aspect.

The present case is not one like PARIC

V JOHN HOLLAND PTY LTD -the citation is given

in the outline -where there was a lack of correspondence

between the attempt to prove the facts on which

the opinion was based and th~ assumed factual

basis upon which the opinion evidence itself

was based. It was said that in those circumstances,

where there was simply a lack of correspondence,

the evidence should be admitted and then the fact that the

factual basis had not been proved in full was a matter

that went to its weight.

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Watson

In my submission, a clear distinction can be drawn between a case where an expert is relying

in part upon the general corpus or body of knowledge

in order to give an opinion and a case in which

he relies on a mixture of sources and the present

sort of case where the opinion is apparently

based substantially or entirely upon a number

of interviews with men who tell the so-called

expert about what their intention was when they

did a certain act.

DAWSON J: Where do we find the basis of the op1n1on that

was sought to be expressed?

MR NASE:	The best place for it is in the judgment of
Mr Justice McPherso~ commencing at page 115 1n
the application book, from line 30. His Honour first set out the ruling by Justice Connolly
and then, on page 116 -for the purposes of the
appeal before the Court of Criminal Appeal, a proof of evidence of some form was placed before the court and that appears in full at page 116
and the top of page 117.

DAWSON J: It does not appear very clearly, does it?

MR NASE:	No, it does not appear very clearly but
Justice Connelly's reference is to case histories
and the reference to certain cases which he has
investi~ated together with the substance of the theorizing which is essentially that:

In many cases in which:I have been involved the man, in a sober state, is very sure

his intent was never to seriously harm
or kill the other person. It would appear

very often that the mixing of this style

of relationship with the use of a knife
together with high alcolol ingestion leads

to many unintentionally severe injuries.

That is the language of case studies: that,

in many cases, the man is very sure his intent

was never to do such-and-such.

The applicant relied on YILDIZ. If I could mention at this point that the issue in YILDIZ

related to whether the witness was qualified

to give the evidence that he did. It was held

by the Full Court that he was qualified because he had direct personal knowledge of the customs and practices of which he gave evidence. He

was a person who had lived in the community

and was giving evidence from his personal knowledge -

his direct personal knowledge - of the customs

and practices of that community.

BIT3/3/SDL	17	1/7/88
Watson

Here the opinions are based upon a limited

number of case studies.

DAWSON J: You say that but the term is "in many cases"?

I suppose it is necessarily limited but - - -

MR NASE:	Yes. At the top of page 116 the reference by
Justice Connolly, the reference to the evidence
of case histories, about 10 or 12 lines down
into the page and, the very first line at page 116:

generalising from certain cases which he has

investigated.

And then:

That evidence of case histories stated by, I think it was Mr Walkley.

TOOHEY J:	Mr Nase, is it implicit in that submission that
if there had been a proper foundation for the

evidence that it would have been admissible?

MR NASE:	The submission is that the evidence at its basis
was inadmissible.  The only proper foundation
that could have been laid would have related to proving the practice itself, if that were
admissible, not in proving the theorizing of the witness about the intent of various people
whose cases he had investigated. That does not
directly answer Your Honour's question. To answer
Your Honour's question is, no, the evidence is
inadmissible.
TOOHEY J:	However qualified a witness may have been to

give evidence on those matters?

MR NASE: It is clear that His Honour's ruling was that

the evidence could be given if a suitable witness

could be found. That was the ruling at page 50

by His Honour. If one brings it back to the

concrete location of the trial, His Honour said

in the passage to which reference was made:

Nobody will stop you or him or anybody

else, if you have a witness to say it,

from saying it is the practice of Palm

Island men to take knives to their womenfolk

if they think it is appropriate.

That was His Honour's indication of attitude during the trial. After counsel's opening, the

Crown prosecutor objected to two	specific pieces
of evidence.	One was the evidence from Walkley

and the other was certain evidence proposed to

be led from the applicant himself that in the

past he had suffered knife wounds but made light

of those wounds in a personal sense.

BIT4/4/SDL	18	1/7/88
Watson

His Honour held that the evidence proposed

to be adduced from the applicant himself, of
having himself made light of knife wounds suffered

by him, was irrelevant and His Honour held that the evidence proposed to be given by Mr Walkley

was inadmissible - also on the grounds of relevance,
primarily.

I should note that during the course of the trial there was a procession of Aboriginal

women who were called as witnesses by the Crown.

Not one of them was asked any questions at all

to ascertain or lay a basis for there being such

a practice. Indeed, it is noteable that counsel

was careful not to ask any such question to any

one of those series of Aboriginal women whose

whole conduct in describing their own actions

and the event was inconsistent with the existence

of any such right claimed.

That exhausts my submissions down to paragraph 4

of the outline of submissions. In paragraph 5

there are a number of criticisms of the proposed

evidence and, in order to make those criticisms

I would ask the Court to turn to page 116 of

the application book where the proof of statement

appears particularly from line 47 where the

evidence proposed to be led is:

In many cases in which I have been involved

the man, in a sober state, is very sure

his intent was never to seriously harm

or kill the other person. It would appear

very often that the mixing of this style

of relationship with the use of a knife

together with high alcohol ingestion leads

to many unintentionally severe injuries.

One can link that; a passage from the proof of evidence,

with counsel's written submission on appeal before

the Court of Criminal Appeal, paragraph (d),

appearing on page 117, which reads as follows:

that for the section of the community such

discipline is associated with a firm belief

that the person inflicting the discipline

does not intend to seriously harm or kill

the object of the knife wound.

There are criticisms both of the methodology

and the logic of the proposed evidence when he II• II

says, or proposes to say, tat 1n many cases , h eventually leading to the comment that it"leads to many unintentionally severe injuries: he must

be speaking of a group of men who have either

killed or seriously wounded a woman.

BIT3/5/SDL	19	1/7/88
Watson

He must be speaking of men whom he has interviewed

and from their latest, self-serving statements
of what their intention was at the time the wound

was inflicted, he ultimately draws a mass conclusion

about their intention. It is that:

In many cases ..... the man, in a sober state,

is very sure his intent was never to seriously

harm or kill.

It does not appear that he took into account

any other evidence as to their intention. No

other evidence as to their intent is apparently

taken or accepted. The defect in the method

can be seen when it is realized that the present

case would confirm the analysis. Here there

was a fatal knife wound and a declaration, a

later declaration, of an absence of any intent

to kill or seriously injure. The methodology

is appropriate to allow the expert, if he is

an expert, to reach conclusions about what such
men may later say their intention was but not

what their intentions were in fact.

This defect in the methodology leads to

a logical absurdity which I submit was recognized

by the Court of Criminal Appeal. To state that

very often unintentionally severe injuries are

inflicted or to assert a firm belief that these

severe injuries very often inflicted are unintended

is to state a proposition that is logically untenable.

How could one have a firm belief in an absence

of intent to seriously injure when very often

serious injury results?

In the Court of Criminal Appeal, both

Justice McPherson and Dowsett concluded that

central to the evidence was a proposition about

the foreseeability of ordinary physical actions

in the real world and for that reason the Court

of Criminal Appeal concluded that the evidence

offended against the rule which prevented expert

evidence being received on matters within the

competence of ordinary members of the community.

The submission here is that, firstly, the opinion evidence was at its basis not proven.
and, secondly, that in so far as it had a theorizing
or speculating content, that it was not within

any recognized body of learning or knowledge

but represented no more than the private theorizing

of the witness based upon what must necessarily

have been a limited number of interviews that
he had with men who had inflicted serious knife

wounds on women.

BIT3/6/SDL	20	1/7/88
Watson

It is said that such a right, as it 1s

described, was, at the top of page 117:

very readily accepted by Palm Island people - and the reason assigned for that acceptance is:

the very large number of scars on these

people.

It is, as I submitted earlier, noticeable that the series of Aboriginal women called by the

Crown were not asked one word about whether such a current practice existed and it is clear that

they would have been competent to give such evidence

just as the applicant himself was competent to

give ~uch evidence based upon his own direct

experience.

DAWSON J: Just as a member of the community in YILDIZ?

MR NASE:	Yes, but, of course, in YILDIZ, if the evidence
had been proposed to be given by a psychologist
brought in, who had interviewed a number of Turkish
residents and who had purported to give evidence
of the customs based upon that, it is my submission
that the evidence would not have been receivable.
It is my submission that the whole of the actions of the witnesses that were called were
inconsistent with the existence of such a right.
The applicant was not living with the deceased
woman;  she was living on the mainland with her
parents; he was living on Palm Island. His
evidence was that they had lived together at
various times in the past and that he periodically visited her on the mainland for periods of a
week or so. His evidence was not very clear. She had visited Palm Island on this occasion, unbeknowns to him, and she was not staying where
he was staying, she was living elsewhere on
Palm Island.  He became aware of her presence
on Palm Island the day before the fatal injury.
He went to speak to her, he was not allowed in the boundary of the yard of the place in which
she was residing;  The moment there was violence
the other women who were present, the ~yewitnesses,
were quick to intervene and quick to threaten

T3 and ultimately call the police.

Not one of those witnesses were asked any

question designed to lay a basis for the existence

of such a practice. The applicant's words, both

to the police and in evidence himself, in my

submission, do not themselves lay the basis for

BIT4/ 1/SDL	21	1/7/88
Wat:son

such a common or widespread practice on Palm

Island as is asserted in argument. The evidence

given by the applicant, and his comments to the

police, are consistent with the normal sort of

drunken actions and motivations that one commonly

sees in the community at large.

It is submitted that the Court of Criminal

Appeal was correct, moving to paragraph 6 of

the outline of submissions - I perhaps have not

tidied up my submissions on paragraph 4 but they

are essentially that the evidence that was sought

to be led was not evidence that sat in any recognized

body of learning or knowledge; it was not evidence

about customary Aboriginal law. It purported

to be evidence of a current practice among a

section of the residents of Palm Island and attached

to that evidence which was intrinsically factual

in character, was certain theorizing by the
expert witness.

It is submitted that the theorizing was so flawed and related to matters of intention

that lay on conventional principles within the

sphere or competence of the jury to determine

and that, for those reasons, the evidence was

properly not admissible.

In paragraph 6 it is submitted that the Court of Criminal Appeal was correct because

of the view of the court that the evidence offended

the rule that matters within the ordinary

competence of jurors are not properly the subject
of opinion evidence, and I have collected the

references in the judgments - - -

DAWSON J:  You do not maintain that if there was a relevant

custom evidence of that custom would not have

been admissible, do you?	You are saying there
was not a custom; that this just does not - - -

MR NASE:  Yes.

DAWSON J: All that this man did was to interview a few people

and then draw his own conclusions from that?

MR NASE:	Yes.
DAWSON J:	But if there was a custom that explained the

nature of this man's actions -

MR NASE:	And if it was properly proved.
DAWSON J:	And if it was properly proved, you do not contend?
MR NASE:	No.

BIT4/2/SDL	22	1/7/88
Watson

DAWSON J:  I see.

MR NASE: If I can conclude with these remarks: it is

implicit in the reasoning of the Court of Criminal

Appeal that the trial judge's ruling that the

proposed evidence was not relevant was correct.

The issue before the jury was whether this particular individual was proven by the Crown to have inflicted

the wound with either the intent to kill or cause

grievous bodily harm. The issue was whether

he, in an intoxicated state, accidentally inflicted

the large wound that killed her or whether the

jury should draw an inference of an appropriate

intent from his acts.

The acts pointed to by the Crown were the

depth of the wound; the knife was plunged in
some distance; the evidence relating to the
force used; the evidence relating to the way
in which the blow was struck, by various eye-

witnesses, and the evidence relating to his

immediate actions afterwards. In the jury's

task in approaching the question of whether,

from those acts proved in evidence, they could

draw the inference that he had an intent either

to kill or cause grievous bodily harm to the

applicant, the proposed general evidence that

a proportion of men on Palm Island practise a

particular form of matrimonial discipline involving

the infliction of minor cuts was, in my submission,
of no relevance to the jury's inquiry.

The fact that it became of no relevance

to the jury's inquiry was confirmed by the absence
of the applicant himself to depose to the fact
of such a practice. If it is said that the evidence

went essentially to his credit, as was said before

Mr Justice Connolly, then it could not do so

as a matter of logic if he himself did not give

the primary evidence that was to be bolstered

up or supported or confirmed by the proposed

expert evidence.

So, in my submission, in conclusion, the evidence here was clearly inadmissible on general

principles relating to the admissibility of evidence

and a further consideration of its admissiblity

does not provide a suitable basis for a review

of the principles governing the admission into

evidence of Aboriginal customary law.	I have
no further submissions.

MASON CJ:  Yes, thank you, Mr Nase. Yes, Mr O'Donnell?

MR O'DONNELL:  Yes, thank you, Your Honour, just a couple of matters. Just in relation to whether or not expert evidence can be based simply on hearsayr

BlT4/3/SR	23	1/7/88
Watson

I would refer Your Honours to the judgment of

Mr Justice Blackburn in MILIRRPUM V NABALCO PTY

LTD, Your Honours have that decision, and I refer

particularly to the decision of Mr Justice Blackburn

at the bottom of page 161, where he compares

the evidence given by a chemist with that of

an anthropologist and/or a doctor and continues

on to page 162 to say that take comfort

from the proposition that medical experts give

evidence on this basis on a regular basis and

there is no reason why anybody who is properly

qualified cannot do so. But be that as it may

in my submission, the heart of Mr Walkley's evidence is not what occurs in the proposition,"I.n many cases

in which I have been involved',and where the

Court from that statement draws some inference that, it would be my submissio~ they were not

so entitled to do. The opening in the trial

is not there and that is simply a proof of evidence

that was provided. It may well be, and I do

not press the matter, that it was that that piece

of evidence may well have been endeavouring to

plead the ultimate issue rather than do what

the earlier statement was purporting to d~ show

a background of a fragmented culture but still

and all accepted by a majority of people in the

community. And that: would be a matter that he

could use,case histories and his own observations,

and there is no evidence to the contrary that
he did not have such expertise. There is nothing
from the transcript that indicates that he was

ruled against on the central issue. Just that his evidence in general was ruled inadmissible

because it was not relevant.

If I just may say in conclusion, if I could

refer to the judgment of the Chief Justice of

Victoria in YILDIZ's case. After the Chief Justice

concurs with the finding of the trial judge he

went on to say, and I submit this is central

to the proposition that:
evidence of social attitude is notoriously
difficult and imprecise.
And he then went on to admit the evidence.	And

I submit that my learned friend's argument is

simply that our evidence was imprecise or in

some aspects, perhaps, objectionable although it

wa.s. all excluded. If any of it was admissible,

and I submit that the central proposition is,

then if there are any weaknesses in it, that

would simply go to weight and not to its relevance
and admissiblity and if that is the case, it

would be my submission that the jury was entitled

to hear it and the accused was entitled to put

it.

BlT4/4/SR	24	1/7/88
Watson
MASON CJ:	Yes, thank you, Mr O'Donnell.	The Court will

adjourn for a short period of time in order to

determine the course it will take in this matter.

AT 10.48 PM SHORT ADJOURNMENT

UPON RESUMING AT 10.58 PM:

MASON CJ: In this application for special leave to appeal

the applicant's case is that the trial judge

wrongly excluded expert evidence of custom and

practice at Palm Island. The applicant submits

that such evidence was admissible and relevant
to the applicant's defence, that in stabbing

the deceased with a knife he was merely intending
to discipline her in accordance with the custom

and practice sought to be proved. However, no

proper foundation for the reception of the evidence,

assuming it to be admissible, was established.

The case is therefore not an appropriate vehicle

for the determination of the questions of principle

sought to be raised and the application must

be refused.

In refusing special leave to appeal in

this case we should call attention to what this

Court has said on previous occasions. The refusal

of special leave to appeal is not to be taken
as an endorsement by this Court of all that was

said by the Court of Criminal Appeal in its judgments.

The application is therefore refused.

AT 11. 00 PM THE COURT WAS ADJOURNED SINE DIE

f.;,,

BlT4/5/SR	25	1/7/88
Watson