Harrington-Smith on behalf of the Wongatha People v State of

General principles 5 I have decided to indicate the principles that would govern my approach to the objections, and to direct the parties to identify by this Friday 22 August, any objections on which they consider rulings to be necessary. I propose for the parties' consideration that the experts' reports be subsequently admitted (when adopted by their authors in the witness box) on the basis that all objections notified and not ruled upon will be taken into account by me as going to weight. 6 In these reasons, I will indicate in a general way shortcomings in some of the reports which are before the Court, but I will refrain from identifying particular reports or passages. 7 Since I have not exercised, or been asked to exercise, the discretion given to me by subs 82(1) of the Native Title Act 1993 (Cth) ('NT Act') to order otherwise, the objections fall to be determined in accordance with the rules of evidence: subs 82(1). 8 Reports or parts of reports that are relevant are admissible, except as otherwise provided by the Evidence Act 1995 (Cth) ('Evidence Act'): Evidence Act, subs 56(1). Reports or parts of reports that are not relevant are not admissible: Evidence Act subs 56(2). 9 The evidence that is relevant is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: Evidence Act, subs 55(1). (I need not discuss the basis on which a court may find evidence to be relevant provided by s 57 of the Evidence Act.) 10 As I understand it, all of the experts' reports are proffered as expert evidence (not as non-expert opinion evidence or as expert non-opinion evidence) relevant to the issue of the existence of native title (as defined in s 223 of the NT Act). 11 Whether evidence, including expert opinion evidence, is relevant depends on application of the test specified in subs 55(1) (see [9] above) - an objective test grounded in human experience, on the application of which minds may differ, but which does not allow for the exercise of discretion. 12 Subsection 56(2) is mandatory. A party who objects to the admissibility of evidence is entitled to a ruling on the objection. 13 It is not, however, for the trial judge to raise and determine questions of admissibility, including any which turn on relevance. Accordingly, the possibility arises of irrelevant evidence being admitted because an objection is not raised (or, if raised, is not pressed). Where that happens, the judge will give the evidence no weight, since it is not evidence that 'could rationally affect ... the [judge's] assessment of the probability of the existence of a fact in issue in the proceeding'. 14 None of the many objections I have read to date are based on a failure to satisfy the requirement of relevance. All reports or parts of reports admitted, will be admitted 'subject to relevance', in the sense that even in the absence of an objection on the relevance ground, I will give any evidence which I do not find to be relevant, no weight.

15 More generally, it will ultimately be a matter for me to give to the reports and the individual parts of them such weight as seems appropriate in all the circumstances (see, for example, Walker v Walker (1937) 57 CLR 630 at 634 - 635 per Latham CJ), including the circumstances referred to in any objections not ruled upon (see [5] above and [46] and [47] below). 'Such weight as seem appropriate in all the circumstances' includes the possibility of no weight at all.

Legal requirements for admissibility of evidence of expert opinion; assumed factual basis for opinion; relevance 16 The general 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': Evidence Act, subs 76(1). This 'opinion rule' assumes that the evidence of the opinion is relevant. Section 78 of the Evidence Act excepts from the opinion rule evidence of certain lay opinions, while s 79 excepts from that rule evidence of certain opinions of experts. Section 79 is as follows: 'If a person has specialised knowledge based on the person's training, study and experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.' In the present case there are many objections to the effect that particular expressions of opinion lie outside the established 'specialised knowledge based on the [author's] training, study and experience'. 17 By providing for an exception to the inadmissibility created by the opinion rule, s 79 goes to admissibility. Again, the section poses an objective test; no discretion is involved; a party raising an objection to admissibility on the ground that the section is not satisfied is entitled to a ruling on the objection; it is for a party, not the judge, to raise the objection; the possibility arises of supposedly expert opinion which does not satisfy s 79 being admitted because an objection is not raised (or, if raised, is not pressed); and in such a case it will be open to the judge to give the evidence no weight. 18 Unfortunately, in the case of many of the experts' reports, little or no attempt seems to have been made to address in a systematic way the requirements for the admissibility of evidence of expert opinion. Counsel protested that, in order to ensure that the requirements of admissibility are met, lawyers would have to become involved in the writing of the reports of expert witnesses. In the same vein, counsel said, in supporting the admission of certain parts of a report, that they were written in the way in which those qualified in the particular discipline are accustomed to write. 19 Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert's particular field of scholarship. So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in subs 82(1) of the NT Act, the requirements of s 79 (and of s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence. 20 In order to establish the admissibility of evidence of expert opinion, it must be shown: (a) that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called (see Cross on Evidence (Australian edn) at [29050]) (Evidence Act ss 55, 56); (b) that the person put forward as an expert possesses specialised knowledge in that field (Evidence Act s 79); (d) that the specialised knowledge is based on the person's training, study or experience (Evidence Act s 79); and (e) that the particular opinion tendered is based on the specialised knowledge (Evidence Act s 79). 21 In many instances the present reports do not: · clearly expose the reasoning leading to the opinion arrived at (cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ('Makita') at [59] - [86] per Heydon JA); or · distinguish between the assumed facts on which an opinion is based and the opinion itself (cf Trade Practices Commission v Arnotts Ltd (No 5)(1990) 21 FCR 324 (Beaumont J) at 327 - 330; upheld on appeal in Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347 - 353; HG v The Queen (1999) 197 CLR 414 ('HG v The Queen') at [39] per Gleeson CJ; Makita at [85] per Heydon JA). 22 Discussions in the cases about these matters do not always clearly distinguish between that which a statement of expert opinion must contain in order to be admissible, and that which it should contain in order to be useful. 23 In relation to the first matter (exposure of reasoning), in Makita, Heydon JA said (at [59]): 'If Professor Morton's report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions.' His Honour followed Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40 in the view that 'the bare ipse dixit' or 'oracular pronouncement' of an expert witness can carry little weight. 24 In relation to the second matter (distinguishing between assumed facts and opinion) the Evidence Act does not, in terms, require, as a condition of admissibility, that an expert witness state distinctly and fully the facts assumed as the basis of his or her opinion: cf ALRC Report No 26 ('Evidence') vol 1, par 750; Quick v Stoland Pty Ltd (1998) 87 FCR 371 ('Quick') at 373 - 374 per Branson J; Daniel v State of Western Australia (2000) 178 ALR 542 ('Daniel') (RD Nicholson J) at [5]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) ('Sydneywide')55 IPR 354 per Branson J at [10]. 25 But expert opinion will not be relevant if there is an insufficient correspondence between all the facts assumed by the expert as the basis for his or her opinion, and those proved or admitted: cf Ramsay v Watson (1961) 108 CLR 642 at 648-649; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 at 87. Absent that sufficient correspondence, it cannot be known whether the opinion proffered applies to the facts proved or admitted. If I cannot discern in a report, distinguishing between them, the expert's opinion and all facts assumed by the expert on which that opinion is based, I will not be able to be satisfied: · that the assumed facts are, to a sufficient degree, the actual facts as I find them to be, to make that opinion 'relevant' for the purposes of s 56 of the Evidence Act (cf Quick at 374 per Branson J; Sydneywide at [14] per Branson J); or · (perhaps) that the opinion proffered is one substantially based on the expert's specialised knowledge, for the purposes of s 79 of the Evidence Act (cf Makita at [85] per Heydon JA) While perhaps it cannot be said that in all cases evidence of expert opinion will be inadmissible if an expert does not separately list all the factual assumptions underlying his or her report, if this is not done, there is a substantial risk that the court will not be able to be satisfied on reading the report, as to what they were, with the result that the opinion will be inadmissible. If the expert does not state and distinguish between all the factual assumptions underlying the opinion and the opinion itself, can I be satisfied that the two criteria of admissibility mentioned are met? 26 Admittedly, there are great practical differences in the present respect between, for example, Makita, an appeal concerned with a report of expert opinion given by a 'physicist who specialised in the investigation of slipping accidents' (Makita at [25]) in relation to the slipperiness of a stair, and a case such as the present one, concerned with reports of opinions given by historians and anthropologists in relation to the more complex question whether there are communal, group or individual rights and interests of Aboriginal peoples in relation to land or waters, where the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples, and they, by those laws and customs, have a connection with the land or waters (see the definition of 'native title' in the NT Act, s 223). 27 Unfortunately, however, in the case of many of the present reports, it is difficult to avoid the impression that no attempt at all has been made to address the criteria of admissibility of expert opinion evidence. The difficulty of my task is increased as a result. My impression is that in some cases, beyond the writing of an initial letter of instructions to the expert, lawyers have left the task of writing the reports entirely to the expert, even though he or she cannot reasonably be expected to understand the applicable evidentiary requirements. Such a course may have been followed because of a commendable desire to avoid any possibility of suggestion of improper influence on the author. But I suggest that the distinction between permissible guidance as to form and as to the requirements of s 56 and 79 of the Evidence Act, on the one hand, and impermissible influence as to the content of a report on the other hand, is not too difficult to observe. It does not serve the interests of anyone, including those of the expert witness, to deny him or her the benefit of guidance of the kind mentioned.

Form of reports 28 With respect, I would emphasise what Gleeson CJ said HG v The Queen (at [39]): '... the provisions of s 79 will often have the practical effect of emphasizing the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.' While the present reports may have a table of contents and be divided into sections with headings and sub-headings, substantial parts of them can be described as undifferentiated combinations of speculation, summary description of facts, opinion (including opinion beyond the witness' field of specialised knowledge), hearsay, unsourced assertion and sweeping generalisation. Marker symbols, such as 'In my opinion' or 'It is my view', are rarely, if ever, used. 29 Another formal difficulty concerns the general lack of paragraph numbering (the report of the late Professor Maddock and the Supplementary Report of Dr Pannell and Mr Vachon are the only exceptions among the 30 reports). It is perhaps unfortunate that the Court's Rules or 'Guidelines for Expert Witnesses' do not contain requirements in relation to the reports of experts similar to those which apply to the form of affidavits (cf Federal Court Rules, O 14 r 2). After all, such requirements should not differ according to whether an expert provides an opinion in an affidavit or in a report. The absence of paragraph numbering has made identification and discussion of passages objected to, uncertain, time-consuming, and generative of misunderstandings. (The absence of the numbering of objections in lengthy lists of objections gives rise to similar difficulty.) 30 I suggest that the use of short numbered paragraphs will not only facilitate reference to, and discussion about, a report, but may serve as a useful reminder to all concerned that the report is being written for legal purposes and must satisfy ss 56 and 79 of the Evidence Act. 31 Similarly, regardless of what the scholarly conventions of a particular academic discipline may allow, an expert witness should ordinarily attribute all derived statements to their sources so that verification or falsification of the witness's assumptions is facilitated. This applies, not only to written sources, but also to oral statements by informants. As noted at [23] above, 'to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions' has been described as 'a prime duty of experts in giving opinion evidence' (Makita at [59] per Heydon JA). 32 Finally, but fundamentally, in some cases the evidence of specialised knowledge based on training, study or experience has consisted of little more than a list of tertiary academic qualifications, positions in which the witness has been employed, and, in some cases, published works. It would have be useful if there had been included a statement of the field within which the writer claims to be able to offer specialised opinions which lie beyond the capacity of the Court to arrive at without the witness' assistance.

Hearsay rule 33 The hearsay rule is stated in s 59 of the Evidence Act, and s 60 provides for the first exception to it as follows: 'The hearsay rule 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.' Some of the anthropologists' reports refer, with varying degrees of particularity, to things which the authors were told. Some of the informants have previously testified in tranches of hearing held in the Western Australian Goldfields region. Often the author's informants are not identified, even in general terms. Objection has been taken on the ground of hearsay to such references in the reports. 34 The question of the admissibility, as evidence of the asserted facts, of an anthropologist's evidence of representations made to him or her by persons whose society he or she is studying has been considered by trial judges in several cases: see Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Blackburn J) at 161; Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 (Olney J) at 560 - 563; Ward v State of Western Australia (1998) 159 ALR 483 (Lee J) at 531; Daniel at [30] - [40]; Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v States of Queensland [2000] FCA 1548 ('Lardil') (Cooper J). Only in Daniel and Lardil did the question fall to be considered in the context of the application of both s 82 of the NT Act in its present form and s 60 of the Evidence Act. 35 RD Nicholson J and Cooper J, in Daniel and Lardil respectively, considered: · that evidence of statements made to an anthropologist was admissible for the purpose of showing the assumed factual basis of the anthropologist's opinions; · that this enlivened s 60 of the Evidence Act; and · that there arose for consideration the discretions conferred by subs 82(1) and ss 135 and 136 of that Act.

I referred to the discretion given by subs 82(1) of the NT Act to order that the rules of evidence not apply at [7] above. Sections 135 and 136 are as follows:

'135 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. 136 The court may limit the use to be made of evidence if 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.' 36 In Daniel, RD Nicholson J deferred deciding whether to exercise his discretion under s 135 until he had the benefit of examination and cross-examination in relation to the particular items of hearsay evidence in question. His Honour invited the parties to apply for him to exercise his discretion under s 136, adding (at [37]): 'It would appear the discretion could even be exercised on a temporarily limited basis until argument has been heard on a particular item of hearsay evidence, where that is to occur.' Finally, his Honour rejected an application for an order under subs 82(1) of the NT Act that the rules of evidence not apply. 37 In Lardil, Cooper J declined to make an order under s 136 limiting the use to be made of an anthropologist's evidence of representations made to him. In summary, his Honour's reasons for declining to do so were that: · if the applicants wished to rely on evidence of the facts alleged in the representations, they would have to recall the makers of the representations (a development which no party in the present proceeding would embrace) or give a notice or notices under s 67 of the Evidence Act and seek to have the hearsay evidence admitted under s 64 of that Act (it would be difficult to regard as 'reasonable', for the purposes of subs 67(1), a notice given so late, and, indeed, in the course of the ruling on the hearsay objections, in the present case); · section 60 made the hearsay evidence only some evidence of the asserted facts, and gave no added weight to that evidence; and · it would remain open to the respondents to contend that his Honour should give the evidence little or no weight. 38 With respect, I will follow the views expressed by RD Nicholson J and Cooper J, which I do not think are clearly wrong, that ordinarily an anthropologist's evidence of statements made to him or her about practices of the society being examined by members of that society will be relevant for the purpose of exposing the factual basis of the anthropological opinions expressed. It is, however, odd that the tendering party should be in a better position because the anthropologist's report is in the form, 'Informant A told me facts X, Y and Z', rather than (in my opinion, the orthodox and preferable model) 'I assume, as the basis of my opinion, facts X, Y and Z'. It is perhaps arguable that the choice of the former in preference to the latter suggests two purposes: the purpose of exposing the expert's factual assumptions and the purpose of proving the asserted facts by hearsay evidence. I am not satisfied in the present case that the hearsay form was chosen for the latter purpose. If I were, I would make an order under s 136 of the Evidence Act limiting the use to be made of the evidence to the proof of the anthropologist's factual assumptions.

39 The way in which the discretions provided for in s 82 of the NT Act, and ss 135 and 136 of the Evidence Act, are to be exercised depends on all the circumstances of the particular case. I have referred earlier to the practical exigencies touching the giving of rulings on the objections in the present case. Like Cooper J, I propose not to make orders under any of those provisions, at least at this stage. No party would welcome a return to the Goldfields region for the purpose of affording the indigenous informants an opportunity of testifying about the things of which they told an anthropologist, and of affording counsel the opportunity of cross-examining them on that testimony. In my opinion, that burden can, with justice, be avoided by my taking the course which Cooper J took in Lardil,of taking into account the hearsay nature of the evidence as going to its weight as evidence of the facts intended to be asserted by the representations.

40 I have had some difficulty in applying the notion of 'opinion' to much of the historians' reports. The word 'opinion' is not defined in the Evidence Act. In the law of evidence, opinion is generally understood as inference drawn from facts; see Cross on Evidence (1991) at [29010]; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 (Lindgren J) at 75; Quick at 373. Another definition is 'a conclusion, usually judgmental or debatable, reasoned from facts': RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 (Giles J) at 130; and see The Queen v Perry (No 4) (1981) 28 SASR 119 (Cox J) at 123 - 126. As is to be expected, the historians' reports assemble and report voluminous data scattered throughout contemporary sources, and offer interpretative conclusions. The distinction between the analysis, synthesis and summary of factual and material on the one hand, and the drawing of inferences on the other, can be difficult, as the historians' reports show. (Counsel did not suggest that parts of the reports were admissible otherwise than as evidence of expert opinion, and I will not assume the task of considering whether they may be.) 41 In some cases an interpretation is offered of the terms of a single letter. Generally speaking, I do not think an historian is qualified in terms of s 79 of the Evidence Act to give expert opinion of that kind.

42 No party objects in principle to the admissibility of the historians' reports, and, accordingly, I propose that they be admitted subject to the objections raised and not ruled upon, as discussed elsewhere. There is, however, a question as to how much of them is admissible as evidence of expert opinion as distinct from submission as to the interpretation I should place on historical data.

Saving of time 43 The course I am proposing for counsel's consideration is not ideal. Objecting counsel are entitled to know what evidence is in and what evidence is not in. Unfortunately, cross-examiners will now be compelled to choose between the risk of cross-examining, and the risk of not cross-examining, on passages objected to and not ruled upon. 44 It is usually said that the absence of rulings on objections lengthens hearings. But this assumes that the objections would have been upheld. It also assumes that an application to lead oral evidence to overcome objections upheld would not have been made, or, if made, would not have succeeded. To be set off against time saved by elimination of some cross-examination of unidentified duration, is the considerable time required to rule on the objections, plus the unidentifiable period required for the leading of any curative supplementary evidence that may be permitted. 45 In any event, counsel have not been able, in response to my invitation, to suggest any better course at this stage in the prevailing circumstances (for several reasons it was not practicable to rule on the objections prior to the commencement of this tranche of hearing dates).

conclusion 46 All that I have said above is subject to the right of the parties to press for a ruling on particular objections. [Counsel for the parties indicated that they agreed to the course suggested.]

47 I will make the direction to which I referred at the outset. [Subsequently, lists of 184 objections pressed were supplied. Some ten hours in Chambers were occupied in deciding on them and it took some three hours of hearing time to give the rulings on them (prior to the commencement of cross-examination of the relevant expert witnesses).] I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate: Dated: 5 September 2003 Counsel for the Applicants: B A Keon-Cohen QC, S Walker and P Vincent Solicitors for the applicants: Goldfields Land and Sea Council Counsel for the first respondent V Hughston SC and J Waters (State of Western Australia): Solicitors for the first respondent Crown Solicitor's Office (State of Western Australia): (Western Australia) Counsel for the second respondent R Webb (Commonwealth of Australia): Solicitors for the second respondent Australian Government Solicitor (Commonwealth of Australia): Counsel for the Maduwongga People G McIntyre SC (Group 4A respondents): Solicitors for the Maduwongga People BHK Legal (Group 4A respondents):

Counsel for the Cosmo Newberry Native Title D Parsons SC Claimants (Group 4B and 4C respondents): Solicitors for the Cosmo Newberry Native Title Ngaanyatjarra Council Claimants (Group 4B and 4C respondents): Counsel for the Group 5A respondents G Hiley QC (WMC Resources Ltd Group of Companies): Solicitor for the Group 5A respondents J Macpherson of WMC Resources Ltd (WMC Resources Ltd Group of Companies): Counsel for the Group 5B respondents C Stevenson, M McKenna and K White (Barrick Gold of Australia Ltd): Solicitors for the Group 5B respondents Hunt & Humphry (Barrick Gold of Australia Ltd): Counsel for the Group 5D respondents C Piper (Placer Granny Smith): Solicitors for the Group 5D respondents Freehills (Placer Granny Smith): Counsel for the Group 5E and 5F respondents M McKenna and K White (LionOre Australia and the Association of Mining and Exploration Companies): Solicitors for the Group 5E and 5F respondents Hunt & Humphry (LionOre Australia and the Association of Mining and Exploration Companies): Counsel for the Group 6A Respondents G Donaldson (Members of the Pastoralists and Graziers Association): Solicitors for the Group 6A Respondents Blake Dawson Waldron (Members of the Pastoralists and Graziers Association): Date of Hearing: 20 August 2003 Date of Judgment: 20 August 2003