Daniel v State of Western Australia

Federal Court of Australia|2001-03-14|Before: Gleeson CJ, Nicholson J

REASONS FOR JUDGMENT 1 These reasons address objections concerning the admissibility of evidence, which objections arose on a voir dire in relation to the evidence of Mr Robinson, an expert anthropologist. The third applicants seek to have admitted into evidence certain portions of Mr Robinson's field notes recording communications to him by parties or members of an applicant group or others. Additionally, the third applicants seek to have admitted certain viva voce evidence taken on the voir dire in relation to those documents. Objections are raised on the part of the first applicants and the first respondents. Broadly expressed, the first applicants seek wide-ranging exclusion of the documents and viva voce evidence to which they have objected. The first respondents confine their objections to certain limited aspects of that evidence.

Nature of the documentary evidence 2 The communications in issue were those which were the subject of the ruling in Daniel v State of Western Australia [1999] 94 FCR 537 given on 25 October 1999. The effect of that ruling was that the first applicants were found to be entitled to maintain the claim which they had made for client legal privilege in communications to Mr Robinson until such time as his expert report was introduced into evidence. That occurred on 20 June 2000. However, on 12 June 2000 the field notes now sought to be admitted into evidence were made available on behalf of the first applicants to other parties. 3 It is important to have in mind that the documentary evidence in issue here is in the nature of field notes made by the expert anthropologist. In Daniel v State of Western Australia [2000] FCA 858 I referred to what was said by Gleeson CJ in HG v R (1999) 160 ALR 554 at 563 - 4 to the effect that there is an importance in ensuring that the opinions of expert witnesses are confined, in accordance with S 79 of the Evidence Act, to opinions which are wholly or substantially based on their specialised knowledge. I also there referred relevantly to the statement by the High Court in Lee v R (1998) 157 ALR 394 at 402 to the effect that while s 60 was intended to work a considerable change to the common law, it was not intended to provide a gateway for the proof of any form of hearsay, however remote. Additionally, I set out the reasoning in Quick v Stoland Pty Ltd (1998) 157 ALR 615 to the effect that s 60 prevents the application of the hearsay rule to evidence which is admitted as relevant pursuant to s 56, the admission to which s 60 operates being the testing of the basis of the specialised knowledge of the expert pursuant to s 79. Once in for that other purpose the evidence is in for all purposes unless limited by s 136 in accordance with the requirements of it. I also referred in the prior decision to the reasoning of Blackburn J in Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 at 161 which makes apparent that in the context which he was addressing (prior to the Evidence Act 1995 (Cth)) anthropologists would not be allowed to give evidence in the form that a particular Aboriginal witness told them that a particular land belonged to a particular tribe. In the same reasons I also referred to the statement by Olney J in Yarmirr v Northern Territory of Australia (1998) 156 ALR 370 at 397 - 400. Those considerations remain relevant and need to be borne in mind in considering the objections in relation to the documentary evidence. It did not seem to me from the submission for the parties that due regard was paid to the matters made apparent by those authorities.

Expert guidelines 4 On 15 September 1998 expert witness guidelines were issued by the Court and were the subject of a Practice Direction by the Chief Justice. In relation to the form of the expert's written report the following were among the requirements: "• At the end of the report the expert should declare that "[the expert] has made all the inquiries which [the expert] believes are desirable and appropriate and that no matters of significance which [the expert] regards as relevant have, to [the expert's] knowledge, been withheld from the Court." • There should be attached to the report, or summarised in it, the following: (i) all instructions (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumptions upon which the report proceeds; and (iii) the documents and other materials which the expert has been instructed to consider." Mr Robinson declared in his reports that no matters of significance which he regarded as relevant had been withheld from the Court. In describing in his report the methodology adopted for its preparation Mr Robinson stated that he had conducted approximately ten weeks fieldwork with the claimants. 5 In Sampi v State of Western Australia [2001] FCA 110 at 20 - 21, Beaumont J said: "when the guidelines mandate disclosure of the material upon which the report proceeds, its aim is wider than revelation of information that supports the opinion. It requires disclosure of material which the expert considered but decided, for good reason, not to rely upon it, or considered that it was not necessary to refer to it, because it did no more than reinforce the conclusion reached. In the present case, one is left with the impression that Ms Glaskin has not fully appreciated the scope of guideline (ii), believing that, so far as fieldwork information is concerned, her obligation extended no further than disclosure of what she actually relied upon, without needing to disclose the existence of any other field information of which she took account in the process of reasoning towards her conclusion. This would include field information that she considered, but which (a) she did not specifically mention in the process of forming her opinion because, in her view, it merely corroborated other information which she had quoted, or otherwise directly referred to in the report, or (b) she rejected as unhelpful because, in her view, it was unreliable or irrelevant. In my opinion, guideline (ii) requires disclosure of both (a) and (b). The level of disclosure is governed by what is appropriate to enable a reader to arrive at a proper understanding of the approach taken by the expert to the field information, information which is fundamental to the formation of the expert opinion in this class of case." 6 That view is consistent with the rules that the foundations of an expert's report should be examined not only in relation to matters on which the opinion is based but on matters which might detract from it: Heydon, Cross on Evidence 6th ed. Butterworths 2000 at [29080] and at [29165]; Freckleton et al The Law of Expert Evidence Lawbook Company 1999 at pp 658 - 659. It follows that if the requirements of the guidelines had been complied with, upon the introduction of the report into evidence there could have been attached to it the materials now the subject of objection for the purpose of examining the foundation of the expert's reasoning.

Whether Field Notes "admissions" 7 For the first respondents it is submitted that the field notes, with the exception of portions to which the respondents object on other grounds, are admissible as an admission pursuant to s 81(1) of the Evidence Act. That subsection provides that "the hearsay rule and the opinion rule do not apply to evidence of an admission". An "admission" is defined in the Pt 1 of the Dictionary to that Act as: "a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding." "Previous representation" is defined in the same Dictionary to mean "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced". "Representation" relevantly includes express oral or written representations. 8 Section 82 of the Evidence Act provides: "Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless: (a) it is given by a person who saw, heard or otherwise perceived the admission being made; or (b) it is a document in which the admission is made." The evidence of the admissions contained in the field notes does not satisfy either the requirements of par (a) or (b) of s 82. To satisfy par (a) the evidence of the admission must be given: Mr Robinson's evidence said to constitute the admissions is in the form of field notes. To satisfy par (b) the admission must be made in the document: the field notes are not the document in which the admission is made, they are the document in which the admissions are recorded. Even if Mr Robinson's evidence satisfies the requirement for the giving of evidence in s 81(a) of the Evidence Act, it cannot satisfy the following matters. 9 Section 87(1) relevantly provides: "For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; " There is no evidence that the persons who are said to have made admissions here were persons who had authority to make the statements on behalf of the party. No case was made that the views of any one party or member of the claimant group had such authority. I would not be prepared to infer that authority from the fact that the persons said to have made the admissions were members of an applicant group. This view is consistent with that reached by Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd (No.4) [2000] FCA 1211 at [10] - [11]. 10 There is the further question of whether the requirements of the definition of "admission" can be satisfied. Even if it can be accepted that a member of the first applicants' claim group qualifies as "a party to a proceeding" although not a named applicant, no argument has been addressed to the issue of how it is that the particular pieces of evidence which it is sought to have qualified as admissions were necessarily adverse to the persons interest in the outcome of the proceeding. For example, Mr David Daniel is recorded in one of the entries in the field notes as having claimed a boundary at the Yule River. In evidence at trial he claimed a situation for the boundary which was not as extensive. Is the Court to conjecture as to whether his evidence is adverse because it shows uncertainty on his part or is it to conclude that it is not adverse because it shows that his evidence in Court was more confined? 11 In my view, for these reasons, the claim for the first respondents that s 81(1) applies cannot be made out. Such resolution at law is consistent with what one would expect where the circumstances are that an anthropological researcher has conducted participatory observation in an Aboriginal community for the purposes of the proceeding and, in the course of so doing, has spoken with various Aboriginal informants and made notes of observations or comments that they have made. Observations of this character stand in marked distinction to the evidence admitted as admissions by Mansfield J in Rothmore Farms Pty Ltd (in liq) v Balgravier Pty Ltd [1999] FCA 598.

Whether evidence should be excluded or limited 12 In relation to some limited portions of the evidence, the cases for some parties urge exclusion pursuant to s 135 of the Act. For the Court to exercise that discretion it must be satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might be (a) unfairly prejudicial to a party or (b) misleading or confusing or (c) cause or result in undue waste of time. The bulk of the submissions require the Court to consider whether it should limit the use to be made of evidence pursuant to the powers and s 136. That section requires the Court to have regard to whether there is a danger that a particular use of the evidence might (a) be unfairly prejudicial to a party or (b) be misleading or confusing. 13 The case for the third applicants broadly seeks the unrestricted admission into evidence of the communications to the expert anthropologists recorded in the field notes. In my view such admission would have the danger that it might be unfairly prejudicial to one or more of the other parties. I reach that view for the following reasons. Firstly, the trial has been conducted on the basis that evidence going to connection and boundaries was evidence which went to the fundamental issues in the trial. Rulings were made in relation to expert reports allowing the exclusion of portions which address those issues which are without apparent foundation. To admit into evidence for all purposes communications made to the expert anthropologist from persons not called to give evidence would run counter to the basis on which the trial was conducted and the acceptance of that approach by the parties. 14 Secondly, it is to be borne in mind that the character of the evidence derives from field notes. The statements in them are broadly in the character of those which Blackburn J in Milirrpum did not consider should be admitted. 15 Furthermore, the evidence of Mr Robinson including his evidence derivative from the field notes was heard on a voir dire. The purpose of the voir dire was to avoid constant interruption of his evidence by objections relating to the hearsay character of the foundations of his knowledge. The evidence was taken in that manner to enable objections to be made at the conclusion of the voir dire. 16 It is the case that during the voir dire opportunity occurred for the parties to cross-examine on the field notes. Such cross-examination was led on behalf of the third applicants. It was followed by cross-examination on behalf of other parties and culminated in re-examination on behalf of the first applicants. It is open to the argument to be made that, given these opportunities for cross-examination on the field notes, no relevant prejudice arises. However, in my opinion that overlooks the nature of the evidence concerned in the context of the trial as a whole and the fact that it was known the communications in the field notes were being approached in a voir dire directed precisely to the tenability of such evidence. 17 I therefore do not accept the submissions for the third applicants that the communications the subject of objection in the documentary evidence comprised of the field notes should be admitted without limitation. 18 In reaching this view I have considered the approach by the Court in Lardil & Others v State of Queensland [2000] FCA 1548. There it was considered that the weight of evidence which had not been tested by cross-examination off-set to a degree the prejudice in relation to witnesses not being called or cross-examined on the hearsay material in an anthropologist's report. That view was reached in the context of the particular trial involving as it did considerable difficulty in returning to Mornington Island. Here the issue of prejudice is to be weighed in the context of the manner in which this trial proceeded. 19 Nor can I accept the submissions made for the first applicants to the effect that where there was little or no cross-examination the material should be excluded under s 135. The case for admission derives from the application of s 56 in conjunction with the operation of s 60 and the existence of the need for both the documentary and viva voce evidence to serve the other purpose of testing the basis of the specialised knowledge of the expert pursuant to s 79. In particular the communications recorded in the field notes are communications arising from the experience of the expert. In circumstances where parties have themselves elected not to cross-examine or to limit cross-examination, it is not appropriate for the Court to consider the exercise of the discretion in s 135 on that ground alone. 20 In relation to the submissions for both the first respondents and first applicants I reject the submission that there is no basis for admitting into evidence on a limited basis materials that Mr Robinson has not explicitly said are relevant to the expression of his opinion. It is not necessary that every aspect of (for example) field notes be put to the anthropologist who has made them. Where the expert anthropologist testifies (as is the case here) that reliance was placed on the field notes, reference to them may enable the Court to assess the credibility of the expert anthropologist by consideration of matters contained in the notes on which the expert has placed no reliance. 21 Subject to these general considerations and approaches in principle I now turn to the particular objections and rule in relation to each of them as follows. 22 The documentary evidence in issue relates to issues such as connection with country, boundaries and genealogies and includes some restricted evidence. I have considered each item in relation to the submissions and above principles. I rule that these documents (3/Y(1), 3/Y(3), 3/Y(4), 3/Z(1), 3/Z(2), 3/Z(3), 3/BB(3) and (4), so far as subject to objections by any party) (all of which are admitted as the result of the application of s 56 and s 60 of the Evidence Act) should be limited under s 136 in their use to the purpose of testing in accordance with s 79 the basis of the specialised knowledge of the expert to whom the communications were made. 23 Having considered the viva voce evidence in transcript form on the same basis, I consider the same ruling should apply to it. All portions of such transcript to which objection have been taken by any party are limited in their use in the same way as the documentary evidence. This portion of the ruling applies to the following transcript references: 5235; 5236.01-5236.25; 5237.05-5237.25; 5270.15-5270.38; 5274-80; 5288.42-5290.05; 5295-6; 5326.26-5326.36; 5327.1; 5327.7-5327.8; 5351.05-5353.10; 5355.10-end of page; 5356.45-5359.25; 5466-8; 5600.25-5600.30; and 5601.05-5601.20. 24 As to transcript 5156.12 - 5156.14, I rule that this passage be limited under s 136 to understanding the basis of the expert's knowledge for the purpose of s 79 and the understanding of his evidence which follows, to which no objection is made. That subsequent testimony requires such limitation rather than exclusion under s 135 as was the case with fn 40 in Ex 1/Y(1), p 77. 25 For like reasons I limit under s 136 the use of transcript 5575.06 - 5575.15 to the purpose of understanding the testimony of the witness which precedes and follows this passage. 26 In relation to transcript 5324.34 - 5324.40 and 5324.43, there is no need to have use of this evidence to follow the testimony of the expert. Consequently and consistently with the ruling on Ex 1/Y(1), p 77.6, this portion of transcript is excluded under s 135. 27 Accordingly, the field notes of Mr Robinson and the transcript taken on the voir dire, subject to the above rulings, are admitted into evidence. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Mr M Barker QC Counsel for the first applicants: Solicitor for the first applicants: No appearance for the second applicants Counsel for the third applicants: Solicitor for the third applicants: Counsel for the first respondents: Mr S Wright Solicitor for the first respondents: Counsel for the 2A respondents: Solicitors for the 2A respondents: No appearance for the 2B respondents Solicitors for the 2B respondents: No appearance for the fourth Solicitors for the fourth respondents: Counsel for the fifth respondents: Solicitors for the fifth respondents: Counsel for the sixth and seventh respondents: Ms K White Solicitor for the sixth and No appearance for the eighth, Counsel for the ninth and tenth respondents: Solicitors for the ninth and tenth respondents: Counsel for the eleventh respondent: Counsel for the part sixteenth Ms K White Solicitors for the eleventh, No appearance for the thirteenth Counsel for fourteen C respondents: No appearance for the nineteen No appearance for nineteen No appearance for the twenty Mr W de Mars Aboriginal Legal Service of Western Australia (Inc) Mr I Viner QC Kitto & Kitto Mr K Pettit Crown Solicitor's Office Mr J Allanson Australian Government Solicitor Blake Dawson Waldron respondents Minter Ellison Mr D Martino Jackson McDonald Mr M McKenna seventh respondents: Hunt & Humphry twelve A and twelve B respondents Mr G Gishubl Jackson McDonald Mr C Pullin QC and part seventeenth respondents: Mr M McKenna part sixteenth and part seventeenth Respondents: Hunt & Humphry and fifteenth respondents Mr R Butler B respondents D respondents second respondents

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