Daniels v State of Western Australia [2000] FCA 1356 | Case summary

Federal Court of Australia|2000-09-21|Before: Nicholson J

REASONS FOR RULINGS 1 On 6 July 2000 (see transcript 5954-5956) I gave a general ruling in respect of reports of the expert anthropologist witness, Mr Rory O'Connor. Those reports appear in two volumes together with a supplementary report. 2 The ruling given on 6 July 2000 followed an earlier ruling given on 26 June 2000. The reasoning in that ruling was not challenged in the submissions in respect of the reports of Mr O'Connor. It was contended only that the reasoning should be differently applied. I therefore proceed on the basis of the understanding of the law which I set out in my reasons of 26 June 2000. I also relied on the same reasons in rulings which I gave on 19 September 2000 in respect of objections made on behalf of a number of the respondents. 3 In the ruling given on 6 July 2000 I concluded generally that there was a danger that a particular use of the evidence in the reports of Mr O'Connor, being the evidence that is subject of the objections, might be unfairly prejudicial to the parties making or supporting the objections. I therefore ordered that the use of such evidence be limited pursuant to s 136 of the Evidence Act 1995 (Cth) to the application of s 79 of the that Act in relation to the report of the expert: See Quick v Stoland Pty Ltd (1998) 157 ALR 615 as considered in my reasons of 26 June 2000. 4 However, I said that the objections as submitted in writing had overstated the deletions required. Opportunity was therefore given to counsel for the objectors to mark on the exhibited copies of the expert report the passages which should be the subject of the limited usage. It is not proved possible for these to be agreed between the respondent objectors and the third applicants. 5 It is therefore necessary for me to consider the application of the general ruling made on 6 July 2000 to the particular pieces of evidence and to determine whether any of those pieces of evidence should be excluded from the scope of the general ruling. 6 Having done so, I find that there are a very limited number of instances where I consider that the effect of the general ruling should be further restricted. My reasons in respect of each of the pieces of evidence are as follows: VOL 1 (3/M(1)) PAGE PASSAGE OBJECTOR i " Don, who had spent… 1st App With another one commenced" Hearsay and irrelevant. Admissible under s 60 for the purposed applying s 79. Danger other uses of evidence re Fred Hicks would be unfairly prejudicial. Limited under s 136 to purpose of testing foundation of specialised knowledge: s 79 8-9 "It was in response….. 1st Resp are relevant to this report" Limited usage conceded. 9 "The payment…involved" 1st App; 1st Resp Limited usage conceded. 10 entire page 1st App; 1st Resp Limited usage conceded. 11 entire page 1st App; 1st Resp Limited usage conceded. 19-33 entire 15 pages 1st App; 1st Resp Limited usage conceded. 44 "In Western Australia..submission" 1st Resp Deletion conceded. 63 "3.3….nineteen-thirties" 1st App Excluded from order applying s 136 limitation. 63 entire second paragraph 1st App; 1st Resp Danger evidence would be unfairly prejudicial. Limited under s 136 to s 79 purpose. 64-68 entire 5 pages 1st App Danger would be unfairly prejudicial on issue of great centrality. Limited under s 136 to s 79 purpose. 65 "Diamond and Bertie…Karratha" 1st Resp See 64 - 68. 66 "Wilfred….'settlements" 1st Resp See 64 - 68. 67-68 entire 2 pages 1st Resp See 64 - 68. 75-76 "in this regard…survived them" 1st Resp "The transfer….survived them" 1st App No evidence making the methodology of transfer relevant. Danger use of evidence would be unfairly prejudicial. Limited under s 136 to s 79 purpose. 77 "The fiction….this report" 1st App

Objection withdrawn. 77 last sentence p77 1st App; 1st Resp Relevant only to apply s 79. Danger other uses would be unfair and prejudicial. Limited under s 136 to such purpose. 78 entire page 1st App; 1st Resp Limited usage conceded. 79 portions of page marked in yellow Same as last sentence 77. 79-80 entire page 80, portions of 79 not marked in yellow Limited usage conceded. 84-85 "As has been….with the country" 1st App; 1st Resp Relevant only to apply s 79. Danger other uses would be unfair and prejudicial. Limited under s 136 to such purpose. 86-88 entire 3 pages 1st App Excluded from s 136 limitation other than as it includes direct statements; hearsay of the type not allowed by Blackburn J in Milirrpum. Danger non-excluded evidence would be unfairly prejudicial. 87-88 "As an integral…in the region" 1st Resp

See 56 - 88. 93-94 "The coastal…(T.Douglas-pers comm)1st App Hearsay by person giving evidence and so danger would be unfairly prejudicial. Admissible under s 60 for purpose of applying s 79. Limited under s 136 to s 79 purpose. "However…young man" 1st Resp Within expert's specialised knowledge. Excluded from s 136 limitation. 96-98 entire section from "I will let" to 1st App; 1st Resp "tell lies" Limited usage conceded. 98 "Given the social….passed on" 1st App; 1st Resp Hearsay by person giving evidence in the case and so danger would be unfairly prejudicial. Admissible under s 60 for purpose of applying s 79. Limited under s 136 to that purpose. 99 entire page 1st App

Sameas 98. VOL 2 (3/M(2)) 4 "The knowledge…store of knowledge" 1st Resp Observation within specialised knowledge. Excluded from s 136 limitation. 6 entire plate 1 after 1st sentence 1st App; 1st Resp Comment on all plates are a mixture of hearsay, irrelevant evidence, narrative in the character of evidence being outside specialised knowledge and derivative in part from witnesses called to give evidence. Danger comments would be unfairly prejudicial. Limited under s 136 to s 79 purpose. 6 entire plate 2 1st App; 1st Resp

See 6. 6-7 entire plate 3 after 1st sentence 1st App; 1st Resp

See 6. 8 entire plate 6 after 1st sentence 1st App; 1st Resp

See 6. 8-9 entire plate 8 after 1st sentence 1st App; 1st Resp

See 6. 11 last 2 sentences, plate 15 1st App; 1st Resp

See 6. 12-13 entire plate 17 after 1st sentence 1st App; 1st Resp

See 6. 13 entire plate 20 after 1st sentence 1st App; 1st Resp

See 6. 14 last sentence, plate 22 1st App; 1st Resp

See 6. 14 entire plate 23 after 1st sentence 1st App; 1st Resp

See 6. 15 entire plate 25 after 1st 2 words 1st App; 1st Resp

See 6. 15 entire plate 27 after 1st sentence 1st App; 1st Resp

See 6. 16-18 entire plates29, 30, 31, 33, 34, 1st App; 1st Resp

See 6. In relation to plate 32 See 6 in relation to portion marked yellow. Two sentences deleted by concession. Remainder accepted as subject to limited usage. 35 except 1st sentences See 6. 19 entire plate 38 1st App; 1st Resp See 6. entire plate 41 See 6. 20 last sentence, plate 42 1st App; 1st Resp See 6. 20-21 entire plate 45 after 1st sentence 1st App; 1st Resp See 6. 21 entire plate 48 after 1st sentence 1st App; 1st Resp See 6. 22 plate 49 See Supplementary Report 76. SUPPLEMENTARY REPORT (3/M(3)) 15 "Subsequent conversations…lands" 1st App Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136. 16-17 last sentence p16, entire p 17 1st App Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136. 18 "and that somehow…are correct" 1st Resp Deletion conceded. 27-28 "Betty Dale…therefore unreliable" 1st App Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136. 34-35 "The TA have seen…into their lands"1st App Hearsay. Admissible under s 60 for s 79 purpose. Danger would be otherwise unfairly prejudicial. Limited under s 136. 40 "Cane Hick's…report below" 1st Resp No foundation; hearsay; not apparent within expertise; seemingly danger of unfair prejudice. Limited under s 136 to s 79 purpose. 48 entire ss 3.2.2 1st Resp With exception of second sentence, within specialised knowledge so far as marked yellow and therefore excluded from limitation under s 136. Second sentence excluded by s 76. entire 3.2.4 1st Resp With exception of second sentence, within specialised knowledge and therefore excluded from limitation under s 136. Second sentence excluded by s 76 49-50 "However…grandchildren today" 1st Resp With exception of final sentence, within specialised knowledge and so excluded from limitation under s 136. Absence of direct evidence goes to weight. Unfair prejudice of final sentence substantially outweighs probative value: excluded under s 135. 51 "The TA group"…bottom of the page 1st Resp Within specialised knowledge and so excluded from limitation under s 136. Absence of direct evidence goes to weight. 52-53 (as marked) "The TA…Yandeearra" 1st Resp From "The TA" to "themselves" in line 10 within specialised knowledge and so excluded from limitation under s 136. Balance from "This became" to "Yandeearra" is opinion on legal conclusion excluded by s 76; in any event unfairly prejudicial as to outweigh probative value and excluded under s 135. 61 entire 1st paragraph 1st Resp Within specialised knowledge. Because of the danger that it might be unfairly prejudicial to other parties, limited by application of s 136. 75 "I do not agree…accurate" 1st Resp Not within specialised knowledge. Excluded under s 76. 76 sentence beginning "A version…" 1st Resp Hearsay, admitted for the purposes of proof of foundation of expert's opinion only (under s 60) and limited under s 136 as unfairly prejudicial. Consistently with this ruling the same sentence is similarly limited where it appears in association with Plate 49. 77 entire paragraph 9 1st Resp Limitation under s 136 conceded. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Rulings herein of the Honourable Justice R D Nicholson.

Acting Associate: Dated: 21 September 2000 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

Daniels v State of Western Australia

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