Daniels v State of Western Australia - [2000] FCA 1334 - FCA 2000 case summary — Zoe

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Daniels v State of Western Australia

[2000] FCA 1334

Federal Court of Australia|2000-09-19|Before: Nicholson J

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Source facts

Court

Federal Court of Australia

Decision date

2000-09-19

Before

Nicholson J

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

REASONS FOR RULINGS 1 On 26 June 2000 I gave reasons in respect of certain objections raised in the course of the hearing. In the course of those reasons I set out what I consider to be the proper approach to opinion evidence. This involved a consideration of the application of ss 55(1), 56, 59, 60, 76, 79, 135 and 136 of the Evidence Act. 2 At the conclusion of those reasons under the heading "Manner in which evidence should proceed" I indicated that the matter should now proceed as follows:

The question directed to ascertaining the expert witness' opinion should be put and the response received by the Court subject to the objections which have been made to it.
Examination and cross-examination should explore the factual base of the opinion to enable the Court to make a finding whether the opinion is wholly or substantially based on the specialised knowledge of the expert based on his training, study or experience.
The hearsay evidence in the expert's report, when tendered, will be relevant evidence to enable the Court to make the finding referred to in 2.
Opportunity will be given to counsel to have the hearsay evidence so admitted limited until that purpose is determined.
Following the making of the finding the Court will consider whether admission of any of the hearsay evidence should be refused. 3 Those steps have now been taken. Additionally, I have received written submissions on the matters in evidence to which objection is taken on grounds relating either to hearsay and/or opinion. 4 My rulings in respect of those objections follow below. In making those rulings I have applied the understanding of the law which I expressed in my reasons of 26 June 2000. 5 In many instances objections are not upheld. However, matters raised in relation to the evidence are, in many of those cases, issues which will go to the weight of the evidence.

[2]

Mr Robinson's First Report ( 1/MFI/Y(1) ) 6 The first respondent contended that the objections to the contents of 1MFI/Y(1) are that the material is hearsay, alternatively coming within the scope of s 135 of the Evidence Act. The first respondent contended that the approach to the evidence adopted by the first applicants was misconceived and resulted in confusion, in that legal advisers to the first applicants permitted Mr Robinson to express opinions in his first report based upon hearsay on points in issue and to try to adhere to those opinions, after the lay evidence, without asking the question "Restricting yourself to the evidence, is your opinion affected?" 7 The fifth respondent objected to certain material on the grounds that the basis for forming the opinion has not been disclosed, or in the alternative, the opinions are based upon either hearsay evidence, the admission of which would be unduly prejudicial to the respondents, or upon statements the Court is able to consider without the assistance of, or reference to, the specialised knowledge of the expert. 8 The eleventh respondent and the Western Australian Fishing Industry Council (part of the sixteenth respondent) particularly adopted and supported the submissions made by the first respondent at paragraphs 63-77 inclusive and 88 of their objections. 9 The first applicants contended that to limit the evidence of an expert anthropological witness in native title proceedings to evidence actually led in proceedings in the formation of his or her anthropological opinions is not correct, at least in the case of an expert anthropologist who has engaged in "participant observation", as explicitly recognised by Blackburn J in Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141at p 161, and similar to the approach adopted by Lee J in relation to a particular issue involving genealogies prepared by anthropologists in Ward on behalf of the Miriuwung & Gajerrong People v State of Western Australia (1998) 159 ALR 483 at 532, with which the Full Court on appeal did not take issue State of Western Australia v Ward [2000] FCA 191, at [153], [154], [268] and [269]. 10 Further, Mr Robinson has had extensive dealings with the claimant group from the time he was Registrar of Sites at the Museum of Western Australia and has had regular contact since and is able to give evidence from an informed perspective having regard to his general qualifications and experience, as well as his field work. Mr Robinson indicated in evidence that his approach to forming an anthropological opinion is consistent with that expressed by Blackburn J in Millirrpum at 161 (see T 5155, 5156). The first applicants contended that the correct way to address the concerns of the respondents is not by excising individual portions from Mr Robinson's reports, but rather, once the Court evaluates all the evidence with the benefit of parties' submissions, to then consider the weight to be given to the various opinions of the experts. 11 The first respondents in reply said that in Millirrpum at 161 Blackburn J held that in order to avoid the hearsay rule, the evidence must be in the form of a proposition of anthropology- a conclusion which has significance in that field of discourse. 12 Further, the first respondent questioned the contention that Mr Robinson actually engaged in a specialised process called "participant observation". The fifth respondent submitted that opinions based on participant observation are inadmissible where the court does not know which of the presumably vast number of statements made to or in the presence of the witness during the course of his participant observation may have been relied upon in expressing the opinion, and cannot know whether the opinion is based on statements made by witnesses out of court which they have not been asked or prepared to make in court, on oath, in the presence of the parties or under cross-examination.

[3]

Page 8 re the attachment of Mr Jerrold to Pidgeon Camp and that it is "not unusual" for others to speak in similar terms. Within experience of expert. No basis to apply s 135. Page 10 re "..each group has its own Law…to maintain and promote" General observation within expert's specialised knowledge from experience. As first applicants accept it does not relieve them of the obligation to prove laws, no basis to apply s 135. Page 21 re "Despite many years of contact…continuing connection to their traditional lands". General observation within expert's specialised knowledge from experience. As first applicants accept it is a general statement, no basis to apply s 135. Pp 37-38 re Investigations for the present claim indicate…claimants' contemporary system of land tenure". General statement based on expert's specialised knowledge from experience. As first applicants accept it is a summary statement referrable to ch 3, no basis to apply s 135 Page 39 re section 3.1.1 "Language and land" from "The claimants believe… during the ngurranyujungkama." General observation within experts specialised knowledge. As first applicants accept it remains for direct evidence to justify the opinion, no basis to apply s 135. Page 49 re "most of the claimants agree that the boundary is correctly drawn as the Maitland river and that the Burrup and Dampier Archipelago are part of the lands of the Ngarluma people' Observation based on expert's specialised knowledge from experience. Probative value substantially outweighed by danger of unfair prejudice on central issue, so excluded under s 135. Page49 re the tribes which are said to have met on the three hills Observation based on expert's specialised knowledge from experience. Read in context of following paragraph, no basis to apply s 135. Page 51 re the sea being spiritually dangerous Observation based on expert's specialised knowledge from study and experience; no basis to apply s 135. Page 51 re the sea being the origin of "a number' of mythological beings. Only one was in evidence. Observation based on expert's specialised knowledge and experience. Given oral testimony on the issue, no basis to apply s 135. Pp 51-60 re the Wagtail story Derivative from expert's specialised knowledge from experience. Given centrality of issue, excluded in application of s 135(a) because of reference to Ngarluma.

[4]

Page 52 re "gas field offshore" Expression of the expert's specialised knowledge from experience. Part of Wagtail Story and should be excluded in application of s 135(a) consistent with pp 51-60. Page 52 re "the extensive rock art galleries…testify to their traditional significance. During site surveys…the claimants have identified…sites …as being traditionally important to them" Observation based on expert's specialised knowledge from experience. Sentence commencing "During site surveys…" excluded in application of s 135(a). Page 66 re "the name… [Nanga Ngoona Moora-Jorga] is said to represent the connectedness of the Burrup and Deep Reach Pool…" Observation based on expert's specialised knowledge from experience. Paragraph excluded in application of s 135(a) due to prejudice arising from centrality of issue. Pp 69-70 re the entire section 3.2.2 "Conception and Birth places" Observation within scope of specialised knowledge from experience. Par 2 after the first sentence admitted under s 136 for limited purpose of showing foundation of expert's knowledge only. No basis to exclude remainder under s 135. Page 71 re section 3.2.3 "Parents and grandparents birth and burial places" Observations based on expert's specialised knowledge from experience. Given generality of statement and other evidence on the issue, no basis for exclusion under s 135. Page 71 re section 3.2.4 "Initiation sites" Same as for section 3.2.3 Page 72 re section 3.2.5 "Thalu sites". Paragraph beginning "According to David Daniel"…ending "into blossom", and the following paragraph. Paragraph quoting David Daniel is hearsay and is admitted for purpose of proof of foundation of expert's opinion only (under s 136). No basis to exclude under s 135 given the confined purpose. Page 72 re section 3.2.6 "Residence", with the exception of what was said to John Wilson in the 1950s. First paragraph except first and sixth sentences excluded under s 135(a). Sentences so excepted and second paragraph within expert's specialised knowledge and no basis to exclude under s 135. Page 73 re section 3.2.7 "Knowledge of country", with the exception of what is said by Palmer in the first paragraph. Section within expert's specialised knowledge. No basis to exclude under s 135. Pp 74-79 re section 3.3 "The Burrup", in particular: a) footnote 40, page 77; Statement of assertion of ownership not opinion. Excluded in application of s 135(a). b) that a" kind of local knowledge" has been accepted by non-indigenous people (p 76) Statement akin to assertion of ownership not within specialised knowledge. Excluded by s 76. c) what was said at a meeting of Nanga-Ngoona Moora-Joorga in 1995 (p76) Hearsay forming part of expert's specialised knowledge. No basis to exclude as recounts division of views. d) what unnamed yindjibarndi people think "Yapurarra" means and whole of paragraph in which it appears (p76) Sentence objected to is within expert's specialised knowledge from experience. Excluded in application of s 135(a). e) certain agreement amongst the Ngarluma group (p 77) Hearsay forming part of expert's knowledge. Excluded under s 135(a) due to prejudice arising from generality on issue in high contest and dependence on footnote 40. f) the claims of the "Ngurinyungu" group (p 77) Second sentence hearsay. Excluded under s 135(a). g) what was asserted by David Daniels about his affiliation with the Murrumparrijirri (p 77) Claims by David Daniel of descent group applications hearsay. After the word "generally" remainder of paragraph excluded under s 135(a) - see also (i) below. h) the failure of Ngarluma people to say certain things (p 77 fn40) See (a). i) the deference people showed to Yilbie Warrie (p 78) Excluded as part of (g). j) the "collective" assertion of the Yindjibarndi (p 78) Akin to evidence of claim; hearsay. Excluded under s 135(a). k) the yindjibarndi expressed willingness to pass knowledge on (p 78) Same as (j). l) "…Ngarluma people strongly assert…" (p 77 fn 40) See (a). Pp 79-80 re section 3.4 (Summary) Observations within specialised knowledge of expert. No basis to exclude generally and any overlap with items success fully objected to above not apparent. Page 83 re "The claimants continued…still possess the techniques of stone tool manufacture". Observations down to word "quickly" within specialised knowledge of expert. Remainder hearsay which is limited under s 136 to use as showing foundation of expert's knowledge. Page 84 re "For the most part…frequency of their visits' Observations not within specialised knowledge of expert from experience. Excluded by s 76. Pp 84-85 re section 4.2 "Knowledge of land and resources" in respect of the Burrup. With exception of first sentence remainder from "For example" to "creeks" limited under s 136 to showing foundation of expert's knowledge because of hearsay character. Pp 84-86 re medicinal plants Within specialised knowledge. No basis for exclusion as referenced quotation. Pp 86-87 re "…the claimants retain knowledge of the spiritual signs…" Within specialised knowledge. No basis for exclusion. Page 88 re "Trevor Solomon observes…current language]", and fn 44. Hearsay from "Bruce Monadee" to end of Trevor Solomon quote. Limited under s 136 to showing foundation of expert's knowledge. Pp 88-89 re the story of two serpents fighting. Within specialised knowledge of expert. No basis to exclude. Pp 89-90 re "Parri Nuka and other beings". The sentence at p 90 "in my experience it is still an active system of beliefs.." Within specialised knowledge of expert. No basis for exclusion. Page 90 re "…the claimants…have maintained their lifestyle as a hunting and gathering society' Within specialised knowledge of expert. No basis for exclusion. Pp 91-95 re section 4.4 "Religious knowledge', and in particular the observation at page 91; "The claimants retain a strong belief in the traditional myths dealing with the creation of the world during the Ngurranyujunkamu" Within specialised knowledge of expert. No basis for exclusion. Section 80 permits reference to ultimate issue. Page 92 re "John Lawrence visited the areas described by Palmer…mythological information collected earlier by Palmer" Within specialised knowledge of expert on basis of his supervision. No basis to exclude. Pp 93-94 re "In addition to important sites…suitable husbands whom they found at Punmu, near Rudall River" ) )Within specialised knowledge of expert. Page 94 re 4.4(b) ) ) No basis to exclude. ) Page 95 re 4.4(d) ) Page 101 re "Ngarluma and Yindjibarndi people have a sense of responsibility …spiritual well-being"; "..seen to be 'caring' for the lands of his group"; "Land should be 'cared for'…negative forces" Within specialised knowledge. No basis to exclude. Page 104 re "The claims of the Ngarluma and Yindjibarndi… is traditionally acknowledged…by other Pilbarra peoples…ownership and management of land". Within specialised knowledge. No basis to exclude on ground "certain lands" is non-specific. Mr Robinson's supplementary report (1/MFI/Y(2) ) 13 The first respondent acknowledged that Mr Robinson's supplementary report is primarily restricted to the evidence but contends the existence of certain instances of hearsay. The fifth respondent objected to certain opinions as to the basis of their formation not being disclosed. Turning to the specific extracts of the report:

[7]

Page 48 re "During surveys of the Burrup… David Daniel has told me…Islands" Hearsay, not put to the witness. Excluded under s 135(a). Page 56 re "The picture that emerges from the evidence…constitute their system of land tenure" Within specialised knowledge. No basis to exclude. Page 57 re "While the rights described might be regarded… their localised connections will give weight to their opinions and desires" Within specialised knowledge. No basis to exclude. Dr Choo's Historical Report Volume 1 (1/MFI/ Q(1) ) 14 The first respondent contended that certain elements of Dr Choo's reports are drawn from the statements of living persons who are lay, available to give evidence, and in some cases are actual claimants with a perceived vested interest. The fifth respondent objected to certain material on the grounds that the basis for forming the opinion has not been disclosed, or in the alternative, the opinions are based upon either hearsay evidence, the admission of which would be unduly prejudicial to the respondents, or upon statements the Court is able to consider without the assistance of, or reference to, the specialised knowledge of the expert. 15 The first applicants in response contended that it is to be expected that an expert would follow the methodology of his or her discipline in producing an expert report (refer to ALRC Report 26), and for an historian this may include reference to relatively recent literature. The general complaint that information contributed by living persons to a researcher following her usual methodologies will always be inadmissible unless that living person is brought to court, is plainly wrong (see Daniels v State of Western Australia [2000] FCA 858 at par 38) Turning to the specific extracts of the report: Page 16 re "Explorers, settlers and other Europeans who occupied the claim area were…excluded from knowledge about aboriginal sites and social relations" Within specialised knowledge. No basis to exclude. Page 17 re "Representation of aboriginal people in diaries…misconceptions and cultural ignorance" Within specialised knowledge. No basis to exclude. Page 17 re "The published historical sources reflect…denied the presence of aboriginal people in their environment" Within specialised knowledge. No basis to exclude. Page 21 re "The stories of aboriginal people…comprise an integral part of the rich oral tradition of the local communities' Within specialised knowledge. No basis to exclude. Page 21 re "These stories and knowledge…in which the stories are located and retained" Within specialised knowledge. No basis to exclude.