De Rose v The State of SA

EX TEMPORE REASONS FOR RULING 1 The first respondent, the State of South Australia ("the State"), has sought the leave of the Court to tender certain documents. It relies on the provisions of s 64 of the Evidence Act 1995 (Cth) ("the Act"). Subsection (1) of s 64 states that its provisions apply in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. That particular provision is to be compared with subs (1) of s 63 of the Act which states that s 63 applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. 2 In the circumstances that are before the Court, the State has stipulated that its reliance is limited to s 64. Therefore the persons who are concerned are deemed to be available. 3 Subsection 64(2) can, for convenience, be abbreviated to state that it provides that the hearsay rule will not apply to a document so far as it contains a representation if it would cause undue expense or undue delay, or would not be reasonably practicable to call the person who made the representation to give evidence. Subject to the discretionary powers of the Court, the provisions of s 64 cannot be activated unless the applicant party has first given reasonable notice to the other party as required by s 67 of the Act. 4 Five notices under s 67 were served by the State on the other parties to this proceeding and those notices are exhibited to the affidavit of Peter David Tonkin sworn on 16 October 2001. Mr Tonkin is a solicitor in the employ of the State and has the conduct of this matter on behalf of the State. The first of the five notices relates to writings of Ms Kim Doohan. The notice was directed to two writings, MFI S14 and MFI S19, both of which have been the subject of reference to the applicants' witnesses who were cross-examined on the contents of selected passages from the writings. 5 The second of the documents relates to extracts from the autobiography of Mr Yami Lester. Those extracts have been marked for identification as MFI S22. The third of the documents is entitled "Grey Earth and Clean Sand, the Yalata Aborigines and Their Homelands". Extracts from that report were likewise the subject of cross-examination. The author was Mr Kingsley Palmer, and again relevant extracts have been put to the applicants' experts who had commented on them, and that was the case also with Mr Lester. 6 The next notice related to MFI S6 and MFI S7 - maps that had been prepared by Mr David R Horton. The last of the notices related to maps and supporting writings originally marked for identification as S15 and S16. However, during the course of submissions, Mr Howie SC, counsel for the applicants, agreed to those documents being received into evidence. They can therefore be disregarded. 7 In addition to the five notices, it became apparent as submissions evolved, that the State was also seeking to tender MFI S22, extracts from a paper by Ms Buckley and others. There had been no s 67 notice given in respect of the Buckley papers, but Mr Howie did not take any point and I will consider the Buckley papers along with the other documents. 8 So far as counsel are aware, there have been no authoritative decisions explaining the nature and effect of the provisions contained in s 64. 9 Mr Besanko QC, counsel for the State, referred to three decisions of single judges of this court, where, in the particular circumstances of those cases, decisions were made that s 64 did or did not apply. In Caterpillar v John Deere Ltd (No 2) [2000] FCA 1903 ("Caterpillar") Heerey J would not accept that the difficulties of bringing an international witness to Australia were sufficient to enliven s 64. In Tsang Chi Ming v Uvanna Pty Ltd (1996) 859 FCA 1, Hill J thought that translations of documents were of such a nature that it was not necessary for the individual interpreter to be made available and s 64 could be applied. In ACCC v CC (NSW) Pty Ltd (1998) ATPR 41-650; (1998) 923 FCA, Lindgren J was of the opinion that detailed transcripts taken in a Royal Commission pursuant to s 155 of the Trade Practices Act (1958) (Cth) should not relieve the moving party from the obligation of presenting relevant witnesses to give evidence-in-chief. He thought it would be logistically inappropriate to permit the "voluminous" transcripts of the witnesses' evidence in the s 155 proceedings in the Royal Commission to be presented as their evidence-in-chief - the more so as they were going to be made available for cross-examination. Those three cases are of marginal assistance to me only. 10 As to the relevant facts in this case, the first one is the question of undue expense. In the s 67 notices in each of the five cases, the State had claimed that undue expense, undue delay and matters of reasonable practicability applied in each case. It is therefore necessary for me to consider each of them. None of the authors are presently resident in Adelaide. So far as the State is aware they each have an interstate address, save for Mr Yami Lester, who lives in the far north of the State near Mintabie. With the possible exception of Mr Lester, there is a simple observation that can be made and that is that video facilities would have been available in each case. 11 But there is a second factor, one to which Heerey J alluded, at par [26] of Caterpillar and that is the question of relativity. Today is the sixtieth day of this trial. There are three parties, each of whom benefits from the presence of senior counsel and supporting junior counsel with instructing solicitors. In addition, until recently, consulting anthropologists have been almost daily present for the parties. It would not be an exaggeration to say that the costs that have been incurred by the parties in these proceedings are very, very substantial, such that the additional costs in bringing five or so further witnesses to the Court would almost pale to insignificance. So, either by using video facilities or by accepting my latter observation, I am not of the opinion that any question of any undue expense is involved. 12 My Lester provides a slightly different situation because of his remote location, but he was present, working as an interpreter, whilst the Court was sitting at Marla and at Ilintjitjara and on site. He could have been the subject of a unique application for interposition, but no such application was made. There are plane facilities from nearby Coober Pedy and further afield from Alice Springs. I see no question of undue expense involving Mr Lester. 13 As to undue delay, the mere fact that this is the sixtieth day of the trial is an answer in itself. If this was a one or a two-day trial and the witnesses were difficult to locate, or were living in remote locations or inclement weather had made transportation difficult, such matters might have been relevant matters, but none of them exist in this case. In the knowledge of such a long case, there can be no question of undue delay. Each of these witnesses, if the State had wished it, could have been the subject of ample arrangements made with an abundance of time to have them present their evidence. 14 It then comes to the question of whether it would not be reasonably practicable to call the persons who made the representations to give evidence. The State is not relying on s 63. It is not suggesting these parties are not available, even though it was said of one of them that his location could not be found as a result of internet searches. That in itself, of course, would not be an adequate effort to locate a person. So I proceed upon the premise that each of them is available and I address the subject of reasonable practicability. 15 There has been no evidence adduced by the State that would suggest that there are matters such as age, infirmity or remote location which would make it unreasonable to expect the presence of those persons. It could not be said that the material which they would wish to present in evidence was incontrovertible material, yet material of such slight significance as to not affect materially the outcome of the trial. 16 The State did not supply any information as to costing on the question of expense. It did not supply any information as to how the trial would have been delayed if these people were to have been called as witnesses. 17 Then there is a final curiosity. It is to this effect: that during the cross-examination of the applicants' expert witnesses, numerous passages from the writings of the authors who were the subject of the s 67 notices and also Ms Buckley's paper, were put, without objection, to the applicants' witnesses. To that extent, putting to one side any question of weight, there is now before the Court passages from the writings, which presumably are the writings that are regarded by the State as significant. Furthermore, the State has obtained the responses of the applicants' expert witnesses to those passages. 18 This factor has been acknowledged by the State in each of the s 67 notices, which so far as relevant states: "All relevant extracts have been put to the applicants' relevant experts who have commented on them." 19 If the passages from the writings were accepted by the applicants' expert witnesses when they were put to them in cross-examination, then of course there would be no need to receive the written form of those passages. If, on the other hand, the passages, having been put to the applicants' expert witnesses, were not accepted by the applicants' experts, then the receipt of the written form of the passages, absent the presentation of the author for cross-examination, would not raise the status of the passages. Either way, it seems to me that it would be an exercise in futility to receive the passages that were the subject of the application. 20 As a result, I have concluded that the Court should rule that the evidence sought to be adduced by the State pursuant to its notices dated 15 October with respect to Doohan, Lester, Palmer, Buckley and, subject to one qualification, Horton, are not admissible under s 64 of the Evidence Act. The map of David Horton, MFI S6, may be received into evidence as Ex S6 but only because it contains markings which were made on it by the applicants' witnesses and it will be received for the purposes of those markings only. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.