Daniels v State of Western Australia

Alleged hearsay foundations of anticipated opinion 6 The opinion which the question seeks to elicit is anticipated to be in terms of the culminating conclusion in the section of the expert's report dealing with the Burrup. In that section the following evidence relied upon by the expert in his report is identified on behalf of the respondents as hearsay evidence by persons available to give evidence and who are claimants: · "A kind of local knowledge has developed among non-indigenous people of the area which perpetuates a view of the Yapurrara as a discrete group." · "At a meeting of the Nanga-Ngoona Moora-Joorga Land Council which I attended in 1995…one of the protagonists in a discussion about ownership of the Burrup produced the Veth report to support a contention that the Yapurrara were indeed a real group and that a particular family had links to it." · "For Ngarluma people, the Yapurrara are those Ngarluma people who live on the coast." · "There was also agreement amongst the claimants that the Burrup's owners could be found from amongst the Ngarluma group…" · "…members of the Ngurinyungu descent group assert rights through their position as owners of neighbouring land. Claimants recall that Willy James, Kanyin's son, identified as a Ngarluma person with rights in Ngarluma land." · "A third claim to the Burrup is made on behalf of the Ngarluma people generally through David Daniel who asserts that, although he has descent group affiliations with Murrumparrijirri, he is also entitled to rights in land in the Roebourne region because he was born in the Harding River at Roebourne and was initiated there. As a landowner with interest in neighbouring land, therefore, he believes that he has the right to speak for the Burrup. As I understand it, he does not make a claim to exclusive ownership of the Burrup, but as a member of the broader Ngarluma language group." · "I have not heard any Ngarluma people say, as reported by Veth et al (1993: 165) that the Burrup Peninsula and islands were not their land" · "On the contrary, Ngarluma people strongly assert that they own the Burrup and its associated islands." · Deference shown to the right of David Daniel to speak about the Burrup "particularly as his claim has had the support of influential senior claimants like the late Yilbi Warrie.." · "The Yindjibarndi people collectively assert an interest in the land because of its mythological links with the sites in Yindjibarndi country." · "Yindjibarndi people …express a willingness to pass on knowledge of the area to young Ngarluma men who take responsibility for the area." 7 For the first applicants it is disputed that the above matters have not otherwise been the subject of evidence and on their behalf a list of such evidence has been provided to the Court. Whether response would be opinion or assertion of fact 8 For the respondents it is submitted that if the question were allowed to be put and the question answered in terms of the conclusion appearing in relation to the Burrup in the expert's report, it would be an assertion of fact. This submission is founded on a finding of Sackville J in Re Guide Dog Owners' & Friends Association Inc v Guide Dog Association of New South Wales & ACT (1998) 154 ALR 527. One issue arising there was the admissibility of the sentence "all person with whom I have so dealt have used the terms "seeing eye dog" and "guide dog" interchangeably and have not used such terms to distinguish between any particular organisation or its method of training guide dogs." Sackville J at 532 declined to characterise this sentence as an expression of opinion. His reasons were that it was not expressed as such and it purported to record the manner in which persons have used the terms concerned. 9 Here, the anticipated response of the expert witness is, at least in his report, expressed to be a statement of opinion. It does not record usage. It could only be asserted as fact as the consequence of the formation of an opinion on the issue. Like the sentence in Guidedogs, it goes to the heart of the issues to be decided in the case. It is not a fact which could be asserted with any readiness. 10 In my view the question to which objection is taken seeks the witnesses opinion on the issue of the Burrup.

Opinion evidence 11 The basic rule of evidence concerning opinion evidence is that stated in s 76 of the Evidence Act 1995 (Cth). The rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. 12 That must be read subject to the exception in s 79 which provides that "if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."

General approach to section 13 In HG v R (1999) 160 ALR 554at 563-4 Gleeson CJ said: "This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinion of expert witnesses be confined, in accordance with s79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinion" (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinion with a spurious appearance of authority, and legitimate process of fact-finding may be subverted." I do not accept the submission for the first applicants that this dicta is distinguishable from the present case because it was stated in the context of criminal law. In its terms it addresses the content of s 79 wherever that section falls for application.

Requirements of the section 14 The first precondition for the application of the exception is that the witness has "specialised knowledge based on the person's training, study or experience." Parliament chose to not include a test that an expert's opinion be related to a recognised field of expertise or result from the application of theories or techniques accepted in that field: Australian Law Reform Commission Report on the Evidence Act (ALRC 38) p 82, par 148. In that context the question arises whether the effect of s 79 is to admit, subject to the control of s 135 to which reference will be made, evidence resulting from "study" of a people by an anthropologist where that evidence relates to particular statements made to the anthropologist by some of the people who are able to be called as witnesses in connection with the claim for native title. 15 It is also to be borne in mind that the words "wholly or substantially" in the section were introduced in lieu of the words "wholly or partly" to avoid expert's giving non-expert opinion evidence: Australian Law Reform Commission Report on the Evidence Act (ALRC 38). 16 In Quick v Stoland Pty Ltd (1998) 157 ALR 615at 617-8 Branson J, with which Emmett J relevantly agreed, said that unlike the common law as set out in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370at 375, the Evidence Act and s 79 do not require that the admissibility of expert opinion depends upon proper disclosure and proof of the factual basis of the opinion. This is because it was intended that the general discretion of the court to refuse to admit evidence was sufficient to deal with problems that might arise in respect of expert opinion the basis of which was not disclosed: ALRC Report No 26, vol 1, para 750. Section 79was therefore to be seen as concerned with the view, estimation or judgment inherent in the inference drawn by the expert from that factual basis. Her Honour said "it is the expert's inference, in this sense, which s 79 requires to be wholly or substantially based on his or her specialised knowledge."

Statutory context 17 Section 79 is preceded by s 78 which provides for admission of opinion evidence, not required to be opinion evidence based on specialised knowledge, where evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the "matter or event." In Guide Dog an issue arose as to whether conversations were an "event." Sackville J at 531 considered that "it is perhaps arguable that conversations to which the witness was a party cannot of themselves be characterised as matters or events. Although s 78 was here referred to in the course of submissions, in the final event it was not pressed as the basis upon which the opinion of Mr Robinson should be admitted. The relevance of s 78 is that, as stated by Sackville J in Guide Dog at 531, it substantially alters the common law by expanding the scope for lay opinion based on what a person saw, heard or otherwise perceived about a matter or event. Section 79 therefore appears in a context where the common law approach is significantly subjected to change. 18 Section 79 is followed by s 80 in which it is provided that evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue or a matter of common knowledge. That is also a change to the common law position. The opinion would not therefore be precluded from admission by the fact that it related to the ultimate issue of native title in relation to the Burrup. 19 Section 79 is also to be understood in the context of s 60. That provides that the exclusionary hearsay rule in s 59 does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. The section does of itself provide for the admission of evidence. The evidence is admitted under s 56, which provides for admission of relevant evidence. Relevance is defined by s 55(1) as existing where the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. The High Court has said that s 60 was intended to work a considerable change to the common law but not intended to provide a gateway for the proof of any form of hearsay, however remote: Lee v R (1998) 157 ALR 394at 502 20 In Quick v Stoland Pty Ltd (1998) 157 ALR 615Branson J held that the report of a qualified accountant and registered auditor with extensive experience as an insolvency practitioner, to the extent that it did not amount to evidence of his opinion based wholly or substantially on his specialised knowledge of accounting and insolvency matters, was admissible. The basis of admission was that it was relevant for a purpose other than proof of the facts thereby asserted being the purpose of establishing the factual basis upon which that expert held the expert opinions expressed in his report: (at 621). That purpose was served in respect of the weight to be accorded to the opinions expressed by that expert which depended to a significant degree upon the factual basis for such opinions. Evidence of the factual basis for those opinions was thus found relevant in the proceeding as evidence which, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, namely the duration of the insolvency of the company. 21 However, Emmett J at 624 considered there was a real question whether the opinions expressed by that expert concerning the insolvency of the company were admissible because the opinion was based at least in part was not based on his specialised knowledge based on training, study or experience. 22 Finkelstein J agreed with Branson J that to the extent that expert had relied upon hearsay as a basis for his opinion, it would be admissible under s 60: see at 625. He considered the extraordinary effect of s 60 could be overcome by an order under s 136 limiting the use to be made of that evidence. Finkelstein J also agreed with Emmett J that if an accountant seeks to do no more than state what is otherwise obvious from records, the evidence is not receivable on the basis it involves no application of expertise: see at 626. Nevertheless he was of the view that as the trial judge had received some assistance from the opinions expressed by the expert that was a sufficient basis for holding that the evidence was admissible. 23 Finally reference needs to be made to the provisions of s 135 and s 136. The former provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. Section 136 permits the court to limit the use to be made of evidence if there is a danger that a particular use of it might (a) be unfairly prejudicial to a party; or (b) be misleading or confusing. It is submitted here that the court should consider if necessary the application of s 135. No such submission is presently made in relation to s 136.

Specialised knowledge of anthropologists 24 The specialised knowledge of an anthropologist derives from the function to be performed by the anthropologist and for which he or she is trained and in relation to which study has been undertaken and experience gained. "Anthropology" is the science of humankind, in the widest sense: The New Shorter Oxford English Dictionary p 87. Cultural or social anthropology is the science of human social and cultural behaviour and its development. Socio-cultural anthropology is traditionally divided into ethnography and ethnology. The former is the primary, data-gathering part of socio-cultural anthropology, that is, field work in a given society. This involves the study of everyday behaviour, normal social life, economic activities, relationships with relatives and in-laws, relationship to any wider nation-state, rituals and ceremonial behaviour and notions of appropriate social behaviour. See C P Kottak, Anthropology: the Exploration of Human Diversity (3rd ed, 1982) p 12. It is apparent that an anthropologist carrying out field work is more than likely to speak to a wide range of persons in the people under examination.

Prior decisions 25 In Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141at 161 Blackburn J held it was not correct to apply the hearsay rule so as to exclude evidence from an anthropologist in the form of a proposition of anthropology - a conclusion which has significance in that field of discourse. He said it could not be contended - and was not - that the anthropologists could be allowed to give evidence in the form: "Munggurrawuy told me that this was Gumatj land." He continued: "But in my opinion it is permissible for an anthropologist to give evidence in the form: 'I have studied the social organization of these aboriginals. This study includes observing their behaviour; talking to them; reading the published work of other experts; applying principles of analysis and verification which are accepted as valid in the general field of anthropology. I express the opinion as an expert that proposition X is true of their social organization.' In my opinion such evidence is not rendered inadmissible by the fact that it is based partly on statements made to the expert by the aboriginals." Blackburn J was considering the admissibility of expert evidence purporting to give an account of the social organization or "laws" of aboriginals. The opinion evidence was partly based on what the experts had been told by the aboriginals. Of that fact Blackburn J said: "The process of investigation in the field of anthropology manifestly includes communicating with human beings and considering what they say. The anthropologist should be able to give his opinion, based on his investigation by processes normal to his field of study, just as any other expert does. To rule out any conclusion based to any extent upon hearsay - the statements of other persons - would be to make a distinction, for the purposes of the law of evidence, between a field of knowledge not involving the behaviour of human beings (say chemistry) and a field of knowledge directly concerned with the behaviour of human beings, such as anthropology. A chemist can give an account of the behaviour of inanimate substances in reaction, but an anthropologist must limit his evidence to that based upon what he has seen the aboriginals doing, and not upon what they have said to him." Blackburn J's reasons were not given in the context of the Evidence Act and he also accepted the common law rule that an expert opinion must make apparent the basis of such an opinion. 26 In Yarmirr v Northern Territory of Australia (1998) 156 ALR 370at 397-400 Olney J considered objections to admission by way of anthropologists' report of statements by available living persons who have not been the subject of primary evidence. One of the main complaints about the report was that it recorded statements attributed to a person within the claimant group who was available to give evidence but was not called. Olney J said: "63. My approach to the anthropologists' report can be summarised in this way: (i) to the extent that it sets out the basis upon which the applicants' claim to native title is formulated, it is in the nature of a pleading; (ii) it contains, to some extent, expert opinion evidence of persons qualified in the relevant field of learning; (iii) to the extent that it contains assertions of fact in the nature of hearsay, based upon information supplied by informants who later gave evidence, regard must be had to the evidence of the informants rather than to the contents of the report; (iv) inconsistencies between facts asserted in the report and the evidence of the witnesses may reflect upon the credit of the witnesses, but this would not necessarily be so if the weight of evidence suggests that the report is inaccurate; (v) the weight to be accorded to assertions of fact not in the nature of expert opinion which are not supported by the evidence of witnesses will depend upon the particular circumstances including whether or not the respondents have had a real opportunity to test the accuracy of the matters asserted in the report." He continued: "64. In the present case the anthropologists' report serves the very useful purpose of providing the contextual background against which the oral testimony of the applicants' witnesses can be better understood. Whether or not a particular statement in the report is to be classified as mere pleading, as expert opinion or as hearsay is not always readily apparent but to a very large extent the report can be accepted as both reliable and informative. It contains some speculation but not much, and to the extent that it does, I have not found it necessary to refer to it." It is to be noted that Olney J reached his decision having regard to the provisions of the Native Title Act in s 82 as they were prior to amendment in 1998, that section then providing that the court was not bound by the rules of evidence. Section 82(1) now provides that the Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders. It is therefore appropriate to first resolve the objections in the context of the rules of evidence before considering whether there is any proper discretionary basis to otherwise order. 27 In Ward v State of Western Australia (1998) 159 ALR 483at 531 Lee J admitted into evidence genealogical charts prepared by anthropologists on the basis that they were not restricted to the expression of opinion by them but were also evidence of the truth of the statements contained therein. He said: "genealogies duly prepared by anthropologists employing their specialised skill and understanding of the structure and culture of a society represent not only an appropriate field of expert evidence but also a record of statements made to the anthropologists, the record of which is likely to be reliable, the statements made being appropriate to be admitted in a case of this nature." 28 Although both Yarmirr and Ward were appealed, the above reasoning would not appear to have been affected. Common law 29 In amplification of the common law position in relation to which s 79 of the Evidence Act was implemented, it was stated by Ipp J, Malcolm CJ concurring, in Pownall at 376: "As regards evidence that contains a mixture of objectionable hearsay and legitimate material, obviously there may be instances where the evidence will be trimmed, with the objectionable material being discarded so that the legitimate evidence remains. But there may be cases where the inadmissible and the admissible evidence are so intertwined that they cannot readily be separated. In such event, the entire body of evidence will be rejected. The same result follows where it is not possible to say which of the evidence is admissible and which not, or to what degree the witness has relied on the inadmissible evidence." Conclusion on application of section 30 From a consideration of these matters I consider the question the manner in which s 79 is to be applied in the circumstances is to be resolved on the following basis:

1. The opinion will only be admissible if it can satisfy the requirements of s 79.
2. Section 79 does not require that for an expert testimony to be admitted it can only be founded on admitted evidence. However, as will appear, that does not mean that regard must not be had to the factual basis of the opinion.
3. For admissibility to follow from the section it is necessary for the court to find that the opinion is wholly or substantially based on knowledge based on the expert witnesses' training, study or experience.
4. As the expression of the opinion in oral testimony will precede findings concerning the matters on which it is based, the opinion could not be admitted into evidence until the Court has made a finding that it is based wholly or substantially on knowledge of the type made requisite by s 79. For the Court to make the findings it will be necessary for examination and cross-examination to make apparent the extent to which the opinion is the product of an inference of the requisite type. That will undoubtedly take the Court to the passages in the expert's written report to which objection is made.
5. The focus for the Court will be on the view, estimation or judgment inherent in the inference drawn by the expert from the factual basis. Having in mind the observations of Emmett J in Quick, that does not preclude reference to the factual basis of the opinion in order for a finding to be made whether the specialised knowledge itself is the base of the opinion. To the extent the evidence considered by the expert, hearsay or otherwise, is able to be considered by the Court without reference to the specialised knowledge of an expert, the opinion of the expert will not be an inference in the exercise of the specialised knowledge.
6. To the extent to which the opinion is akin to the form found permissible by Blackburn J in Milirrpum, it would seem that it would be likely to fall within the description of knowledge derivative from the expert's training, study or experience.
7. Hearsay evidence from which the opinion is inferred, will (subject to the application of s 135 and s 136) qualify for admission pursuant to s 56 as relevant to the purpose of the basis upon which the expert holds the opinion so that its weight can be assessed. It could then be used for a hearsay purpose as a consequence of the application of s 60.
8. Admission of hearsay evidence with that consequence under s 60 leads inevitably to the need for the court to consider whether that admission should be limited under s 136 to the stated purpose of testing the knowledge on which the opinion is based.
9. Admission with the consequences flowing from s 60 would not occur if the court considered admission should be precluded in exercise of its discretion under s 135. It would seem that hearsay evidence comprising a statement as to the existence of native title made to the expert by a party not called (and being on an issue central to the case) would qualify for exclusion or admission limited to testing the opinion in the manner required by s 78.

Associate: Dated: 26 June 2000 Mr M Barker QC Counsel for the first applicants: Mr W de Mars Solicitor for the first applicants: Aboriginal Legal Service of Western Australia (Inc) No appearance for the second applicants Counsel for the third applicants: Mr I Viner QC Solicitor for the third applicants: Kitto & Kitto Counsel for the first respondents: Mr K Pettit Mr S Wright Solicitor for the first respondents: Crown Solicitor's Office Counsel for the 2A respondents: Mr J Allanson Solicitors for the 2A respondents: Australian Government Solicitor No appearance for the 2B respondents Solicitors for the 2B respondents: Blake Dawson Waldron No appearance for the fourth respondents Solicitors for the fourth respondents: Minter Ellison Counsel for the fifth respondents: Mr D Martino Solicitors for the fifth respondents: Jackson McDonald No appearance for the sixth and seventh respondents No appearance for the eighth, twelve A and twelve B respondents Counsel for the ninth and tenth respondents: Mr G Gishubl Solicitors for the ninth and tenth respondents: Jackson McDonald Counsel for the eleventh respondent: Mr C Pullin QC Solicitors for the eleventh, sixteenth and seventeenth Respondents: Hunt & Humphry Counsel for the sixteenth and seventeenth respondents: Mr M McKenna No appearance for the thirteenth and fifteenth respondents Counsel for fourteen C respondents: Mr R Butler No appearance for the nineteen B respondents No appearance for nineteen D respondents No appearance for the twenty second respondents Date of Argument: 23 June 2000 Date of Judgment: 26 June 2000