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

INTRODUCTION 1 The evidence in this long-running native title proceeding was concluded on 10 December 2003, subject to the tender of fourteen documents by the applicants. Brief submissions in favour of the admissibility of some of those documents had been made by the applicants in a document filed on 15 May 2003. Closer to the December 2003 tranche of the hearing, there was, apparently, correspondence between the parties in relation to the proposed tender. 2 The Goldfields Land and Sea Council, representing the applicants, wrote to the Court and to all parties on 28 November 2003, listing these fourteen documents among others, as documents which the applicants still 'sought to tender as part of their case'. On 3 December 2003, the legal representatives of the Group 5B and 5F respondents wrote to the Court and to the parties outlining objections to some of the documents. The Court was informed on 10 December 2003 that the Commonwealth and the State supported the objections. Subsequently, following the making of directions on 10 December 2003, on 8 January 2004 the applicants filed supplementary and more detailed submissions in support of the tender, and on 14 January 2004 the Group 5B and 5F respondents filed supplementary submissions in support of their objections. 3 The tender of one of the fourteen documents, 'Summary of Mt Margaret marriage register - 1932-1969', is no longer pressed. Another document is listed twice, once as 'Document 1.H.4. - Record of deaths at Mt Margaret Mission from 1921, 1923-69' and once as 'MFI 67 - Document headed 'Deaths' referred to by Mrs Morgan'. The latter description was given to the document when it was marked for identification on 27 November 2002 in the course of the testimony of Mrs Margaret Morgan. 4 I will address the twelve documents in issue in three groups. The first group comprises five documents sought to be tendered during Mrs Morgan's testimony. The second group comprises four documents which are now to be admitted by consent. The third group comprises three miscellaneous documents to which the respondents take objection. As will now be clear, there are eight contentious documents: five tendered through Mrs Morgan and three others.

[6]

'previous representation' is defined to mean 'a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced'. 9 Section 63 of the Act provides for an exception to the hearsay rule in certain cases of first-hand hearsay where the maker of a previous representation is not available to testify about the asserted facts. Section 63 is as follows: '(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.' (my emphasis) It is s 63(2)(b) on which the applicants rely. Clause 4 of Part 2 of the Act's Dictionary provides that for the purposes of the Act, a person is taken not to be available to give evidence about a fact if, relevantly, the person is dead. The word 'document' is defined in the Dictionary to mean, for the purpose of the Act, 'any record of information'. 10 Subsection 67(1) of the Act provides that the exception to the hearsay rule found in s 63(2) does not apply to evidence adduced by a party, unless that party has given 'reasonable notice in writing to each other party of the party's intention to adduce the evidence.' Subsection 67(2) provides that a notice under s 67(1) is to be given in accordance with any regulations or rules of court made for the purposes of s 67. Subsection 67(3) provides, relevantly, that the notice must state the particular provisions of Div 2 of Pt 3.2 of the Act on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence. In the present case, a notice would have been required to identify s 63(2)(b) as the provision on which the applicants intended to rely. 11 Subsection 67(4) provides that even if notice has not been given as required by s 67(1), the Court may, on the application of a party, direct that, relevantly, s 63(2) is to apply despite the failure to give notice. 12 Regulations and rules of court have been made for the purposes of s 67. Clause 5 of the Evidence Regulations 2000 (Cth) ('the Regulations') is made for those purposes. It requires a notice to state certain matters, including the substance of the hearsay evidence intended to be adduced and particulars of the representation made. 13 Order 33 r 16(3) of the Federal Court Rules provides that notice of the intention to adduce evidence of a previous representation must be in accordance with Form 144, and may have attached to it an affidavit that sets out evidence of the previous representation. However, r 16(4) provides that compliance may be dispensed with in whole or in part if the Court is satisfied, having regard to all the circumstances, including any affidavit that has been served, that the purpose of the requirement has been satisfied. 14 Section 69 of the Act provides for a further exception to the hearsay rule: the 'business records' exception, on which the applicants also rely. Section 67's requirement of the giving of notice does not apply to this exception. 15 Subsections 69(1), (2) and (5) are as follows: '(1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.' … (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).' (my emphasis)

[8]

Group 1: Documents referred to during the testimony of Mrs Margaret Morgan 17 On 27 November 2002, during the testimony of Mrs Morgan, the applicants tendered the following five documents: s MFI 66 - Document headed 'Births from 1921' s Document 1.H.4./MFI 67 - Document headed 'Deaths' (also described in documents filed in the proceeding as 'Record of deaths at Mt Margaret Mission from 1921, 1923-69') s MFI 68 - Document headed 'Child Endowment 1942 - Graham Homes' s MFI 69 - Document headed 'Families Endowment - Cottage folk' s MFI 70 - Handwritten genealogical sheets referred to by Mrs Morgan 18 The applicants had indicated, in a list of documents filed on 30 November 2001, that they would tender 'Records of Mt Margaret Mission, including births, deaths and marriage records, diaries of Reverend Schenk and genealogies prepared by Margaret Morgan, author of "Drop in the Bucket"' (sic - the reference is to a book, parts of which have already been admitted into evidence, entitled Mt Margaret: A Drop in a Bucket, written by Mrs Morgan and first published in 1986 by Mrs Morgan and her husband, Keith Morgan). In a later list filed on 30 January 2002, the applicants had identified a document, 'Record of deaths at Mt Margaret Mission from 1921', as a document they would seek to tender - the list referred to both Document 1.H.4 and MFI 67 (see [3] above). 19 Mrs Morgan is the daughter of the Reverend Rodolphe (Rod) Schenk and Mrs Isobel May (Mysie) Schenk, both now deceased, who were Christian missionaries in the Goldfields region of Western Australia. In 1921, Rod Schenk established a mission at Mt Margaret ('the Mission'), not far from Laverton, under the auspices of the United Aborigines Mission. Mr and Mrs Schenk were married soon afterwards, and Mrs Schenk joined her husband in the work of the Mission. Mrs Morgan gave evidence that her parents continued to work as missionaries there until 1953, when they retired to Esperance. During the Schenks' time at the Mission, a school and a 'hospital' were established there. They also established dormitories and cottages in which Aboriginal people in the area came to live. There is evidence from some of the members of the applicant group that, as children, they resided at the Mission and attended school there. 20 Counsel for the applicants said at one stage (on 27 November 2002) that the basis of the tender of all of the documents was that they were 'records kept for a public purpose'. The grounds of objection were that the documents infringed the rule against hearsay and that no notice had been given in the form envisaged by s 67 of the Act. Counsel for the Group 5B and 5F respondents also said that the documents had not been provided to the Group 5B and 5F respondents, although they had been requested. 21 I delivered brief ex tempore reasons for declining to admit the documents at that stage. The reasons related primarily to the absence of advance notice and the fact that the respondents may have wished to cross-examine indigenous witnesses, who had long since left the witness box, about the documents. I also observed that, should copies of the documents be provided to the respondents, it was possible that the admission of them would prove to be uncontroversial, and that it was also 'conceivable that a further tender of them might succeed'. 22 One of the five (the 'Record of deaths at Mt Margaret Mission from 1921; 1923-69') continued to be included in lists of documents proposed to be tendered, filed by the applicants on 23 April 2003 and 15 May 2003. The respondents have not submitted that I should not decide afresh on the admissibility of all five documents. 23 Except for from the handwritten genealogical sheets (MFI 70), I will deal with the documents as a group. The other four were all prepared by the late Mrs Schenk. The submissions put in support of the admission of all four documents are identical, as are the submissions put in opposition by the Group 5B and 5F respondents, supported by the other respondents, against their admission. 24 Clause 6 of Pt 2 of the Act's Dictionary provides that for the purposes of the Act, a representation contained in a document is taken to have been made by a person if, relevantly, 'the document was written, made or otherwise produced by the person'. The previous representations contained in documents with which I am concerned are those made by Mrs Schenk in documents she prepared (the reference in s 69(2)(b) of the Act to information supplied to the representor is another matter). 25 Evidence by Mrs Morgan in relation to the provenance of the documents, given on the voir dire at the time of the first attempted tender, on 27 November 2002, remains relevant, and I will have regard to it.

[13]

Deaths are recorded for most years, the earliest being in 1923 and the latest in 1969. 34 The Group 5B and 5F respondents submit that the representations made by Mrs Schenk in the documents are not shown to have been derived from her personal knowledge of the asserted facts, and should be taken to have come from information supplied to her by other persons. They submit that each document is merely a 'summary of historical facts, which have not been proved', or a 'compilation of hearsay statements' given by unidentified and unidentifiable persons. 35 While these submissions were made in relation to the s 63 exception to the hearsay rule, I will also consider them in relation to the business records exception to that rule in s 69(2). 36 Mrs Morgan testified that her mother would be visited by Aboriginal inhabitants of the Mission and be informed of births and deaths by them. According to Mrs Morgan, Mrs Schenk recorded this information in handwriting in an exercise book, and later typed it up in the tabular form depicted above. Mrs Morgan said that a reason why her mother collected the details of births was that it 'helped in later dealings for the parents when they came to want the pension and so on'. 37 Undoubtedly, the information in both documents would also have been important for administrative purposes in connection with the accommodation and education of indigenous people at the Mission. The documents appear to have been kept and prepared conscientiously and with some regard for accuracy. In parts of the tables, question marks appear, which I take to indicate ignorance or uncertainty on the part of Mrs Schenk as to the correct response to be recorded. The apparent comprehensiveness of the information recorded, such as first and last names, aliases, names of both Aboriginal and non-Aboriginal origin, and the many years over which the information appears to have been recorded, give both documents an appearance of consistency and reliability. On the testimony of Mrs Morgan and the appearance of the documents, I am satisfied that they were transcriptions typed by Mrs Schenk of handwritten records kept by her in exercise books in the course of and for the purposes of the Mission. 38 The documents contained representations as to births (MFI 66) and deaths (MFI 67). Were the representations made by a person 'who had or might be supposed to have personal knowledge of the asserted fact', or 'on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact' (see [15] above)? Mrs Morgan said she was not present during conversations between her mother and the various Aboriginal people who gave information to her mother about births and deaths. However, she also said that her mother knew the date of all births that occurred at Mt Margaret, because 'either [Mrs Schenk] was the midwife or somebody - somebody there, and when Matron Murray came well they were all born in the hospital'. There is evidence that the hospital was 'half-built' in 1934 and that Matron Murray arrived to assume responsibility for the hospital in 1936. 39 As to babies born outside the Mission, Mrs Morgan explained her mother's practice as follows: 'She kept a book, an exercise book into which she categorised them like that - year, month, day, parents, name of child. And as she heard of a birth. They are not all born at Mount Margaret. She would hear of people - women having babies, say in Kalgoorlie, or Leonora, and when they came to - when they came - came with this baby, she'd look at it and judge herself what she - how old she thought the child was, but then she'd ask the mother and they would say "Oh yes, born two moons ago". That means two months. Or else they'd say "Yeah, three Sundays" or else they'd say "Four train days" which were once a week. And she would get a general idea of what the date of birth was.' (my emphasis)

[15]

42 The failure to identify the maker of the representations contained in the signs meant that it was impossible to determine whether it would cause undue expense or undue delay, or would not be reasonably practicable, to call that person to give evidence. 43 While Mrs Schenk's informants are not identified by name, Mrs Morgan's testimony establishes that they were Aboriginal people who from time to time resided at or visited the Mission. Mrs Morgan said her mother acted as midwife on occasion, and actively sought information from Aboriginal women visiting who had given birth outside the Mission. This is not a situation, like that in Daniel, in which there is a total absence of evidence at all as to the source of the information on which the representations were based. 44 I infer that the sources of Mrs Schenk's knowledge of the births were, as to births on the Mission, her experience as midwife or otherwise as a person present, and as to births elsewhere, information given to her by the mothers. The former satisfies the 'personal knowledge of representor' test of s 69(2)(a), and the latter the 'personal knowledge of informant of representor' test of s 69(2)(b). I infer that Mrs Schenk's knowledge of the deaths was, as to deaths on the Mission or which resulted in burials on the Mission, her personal knowledge, and as to other deaths, information given to her by close relatives. The sane statutory provisions apply respectively to these two classes of source of knowledge. 45 The documents contain representations of different classes, however. At the minimum, Mrs Schenk is making representations to readers as to the fact and date of birth or death. But informants would not necessarily have had personal knowledge of all the other information contained in the documents. Subsection 69(2) provides that the hearsay rule does not apply to a document 'so far as it contains the representation' in question. The provision contemplates the possibility of a distinction between various parts of the one document. In the case of the 'Births' document (MFI 66), the columns giving date of birth, parents and name of child, all record information which, I infer, would have been within the personal knowledge of the informant mother. In the deaths document (MFI 67), likewise in relation to the date and name columns, but not the columns, 'Cause', 'Age' or 'Buried'. 46 The evidence of Mrs Morgan in relation to her mother's records is unsatisfactory in one respect, which was not raised in submissions. The following exchange took place between Mrs Morgan and counsel for the applicants on 27 November 2002: 'And the exercise book you spoke of, how were the - how was the information transferred from the exercise book into this form? - - - Oh my mother typed it on her Underwood typewriter I think. When did she do that? - - - Not till years later. Was she still at the mission or not when she did that? - - - Well, yes, before she left. Yes, okay. - - - Before she left, and - and the - let me see. Yes, she - she got as much information as she could which helped in later dealings for parents when they came to want the pension and so on. …Over on - years later.'

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53 Mrs Morgan testified that her mother also prepared this document. She said that in addition to the child endowment paid to the Mission in respect of the children in the Graham Homes, the 'cottage people' (or 'hill people' as they were also called), also collected child endowment payments - these were made to mothers in respect of their children. 54 The 'Child Endowment - Graham Homes' document purports to record events extending from 1926 to 1965. Columns headed 'Name', 'Parents', 'Address', 'Birth', 'Admission' and 'Discharge' occur on all pages, and on some, 'place' of birth and 'source' of the child are recorded. The 'Endowment - Cottage Folk' document purports to record events extending to 1972, although most of the representations in the document relate to events in the 1930s, 1940s and 1950s. I am satisfied that both documents were prepared by Mrs Schenk for the administrative purposes of the Mission, including that of providing information to government agencies for the purposes of assisting residents at the Mission to obtain benefits provided by government. On the evidence, I am satisfied that both documents were, or formed part of, records kept in the course of and for the purposes of a business, namely the Mission 'undertaking'. 55 Were Mrs Schenk's representations contained in the two documents made either from her 'personal knowledge' of the asserted facts, or on the basis of information indirectly or directly supplied to her by persons with 'personal knowledge' of the asserted facts? 56 The evidence establishes that both Mr and Mrs Schenk were closely involved in the establishment and management of both the Graham Homes and the Cottages. 57 In so far as these documents contain details of births, I note that Mrs Morgan stated in her evidence given on 27 November 2002 that her mother had obtained the information on births in the latter document by '[j]ust ask[ing]', but that her mother 'knew the dates'. She elaborated on this evidence in the passage set out at [39] above. 58 Sixty-six of the 204 births noted in the 'Families Endowment - Cottage Folk' document are described as having taken place at 'Mt Margaret', 'Mt Marg', 'Mt Mar' or 'Mt M'. Of 243 births noted on the 'Child Endowment - Graham Homes' document, it appears that 29 are noted as having occurred at 'Mission', 'Mt Margaret', or 'Mission H' (the latter I take to refer to the Mission's hospital). I will admit documents in so far as they contain representations as to the facts and dates of birth and identity of mothers, which are annotated in any of these ways in both documents, on the basis of my inference that Mrs Schenk had personal knowledge of the asserted facts, being the facts and dates of the births of the named persons and the identity of their mothers, where the births occurred atthe Mission (cf s 69(2)(a) of the Act). 59 In relation to the document headed 'Child Endowment - Graham Homes', Mrs Morgan described the various subheadings of the table as reflecting: 'Name, surname, first name, parents, then address, then the birth of the child, and then their admission into the Graham Homes. … And the source from which they came. Karonie in the case of the first one. … And discharge. …The date and - oh - and where they went.'

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(I infer that the reference to 'girl' above also includes a reference to 'boy', as the document refers to boys as well as to girls.) Mrs Morgan also said that after a telephone line was installed at the Mission, her father would telephone pastoralists in the Goldfields in order to secure employment for boys living at the Mission. Mrs Morgan conceded that she did not, herself, have personal knowledge of where the children went on discharge. 61 The 'Parents' column is subdivided into two. The left-hand column appears to refer to the mother's name, and the right-hand column to the father's name. I will admit the left-hand 'Parents' column as containing representations as to maternity which would have been within Mrs Schenk's own personal knowledge, where the child was born at the Mission. In so far as the 'Address' column indicates that the parents resided at the 'Mission' (which accounts for most of the entries) I also infer that the fact of their residence on the Mission would have been within the personal knowledge of Mrs Schenk. 62 I do not, however, infer that Mrs Schenk had personal knowledge of the asserted facts the subject of her representations in the document headed 'Child Endowment - Graham Homes' under the right-hand 'Parents' column, the 'Address' column in so far as it refers to places outside the Mission, the date and place of birth where that birth is said to have occurred outside theMission, or the representations contained within the 'Source' column. The right-hand 'Parent' column appears to name the person Mrs Schenk believed to be the biological father of the child. While Mrs Morgan said of children with non-Aboriginal biological fathers that: 'the Aboriginal father used to pamper them as well as the rest of his family', and evidence of some of the indigenous claimants was to that effect, the fact that 'Whiteman' [or 'White Man'] is mentioned at times in this column indicates that Mrs Schenk was concerned here with biological rather than social parentage. Biological paternity was not within Mrs Schenk's personal knowledge. As to the 'Source' column in the document headed 'Child Endowment - Graham Homes', Mrs Morgan said that her mother: 'would ask questions, "Where did you come from" and she - they always did that. They - when people came in, they'd say - ' 63 Mrs Morgan testified that parents who resided in camps near the Mission would meet with their children in a riverbed nearby and give them bush tucker. She said that at holiday time many of the boys and the 'full-blooded' girls who resided in the dormitories would be collected by their parents and would be returned by the start of school, on the basis of a note containing the recommencement date that would be given to the child at the start of the holidays (according to Mrs Morgan, some of the children were allowed to remain behind for fear of their removal to the institution at Moore River if they were seen outside). From this evidence I think it likely that Mrs Schenk would have been informed by others of the 'address' of parents who did not live on the Mission. I treat the information in the 'Source' and 'Address' columns, and in relation to births outside the Mission, as satisfying s 69(2)(b) by having been supplied to Mrs Schenk, by persons (the children or their social parents) who had personal knowledge of the asserted facts. 64 Generally similar considerations apply to the document headed 'Endowment - Cottage Folk'. The asserted facts, the subject of the representations contained under the columns 'Mother', 'Children' and 'Birth' in so far as they relate to births at the Mission, and 'Marriage' in so far as they relate to marriages celebrated there, can reasonably be said to have been within the personal knowledge of Mrs Schenk. It is reasonable to infer that Mrs Schenk would have known the names of the family members living in the Cottages. Mrs Schenk's signature as a witness appears on a number of the many certificates of marriages celebrated at the Mission which are to be admitted into evidence by consent (see [87] below). The evidence indicates that Mrs Schenk was present at some, if not all, of the marriages celebrated at the Mission by her husband as Minister, and therefore it is highly likely that she would have been aware of the names of married couples. 65 Although I am not prepared to infer that Mrs Schenk had personal knowledge of births and marriages which took place outside the Mission, or of the asserted facts the subject of representations contained in the columns headed 'Mother's Birth' or 'M. Name' (which I take to refer to 'Maiden Name'), I think these representations also satisfy s 69(2)(b) in that they were made by Mrs Schenk on the basis of information supplied to her by persons with personal knowledge of these asserted facts, namely, the mothers themselves. 66 However, in relation to both of these documents, for the reasons given in [47] and [48] above, I decline to admit all parts of the document which contain representations as to events (such as births, marriages, dates of admission and discharges) occurring after 1953. 67 I rule that the documents MFI 68 - Document headed 'Child Endowment 1942 - Graham Homes' referred to by Mrs Morgan, and MFI 69 - Document headed 'Families Endowment - Cottage folk' referred to by Mrs Morgan, to the extent identified earlier, are admissible on the basis that they are business records and that the representations in question contained in them do not infringe the rule against hearsay.

[26]

The discretion to exclude evidence (s 135) 74 The Group 5B and 5F respondents seek an order that if I should rule that the document known as Document 1.H.4 or MFI 67 headed 'Deaths' is admissible, it should nonetheless be excluded under s 135 of the Act. They submit that its reliability cannot be tested because it is 'a collection of statements from unidentified persons by a now deceased author', and was produced for the first time on 27 November 2002 'after the completion of evidence of the lay witnesses'. (The evidence of indigenous people was in fact completed on 28 November 2002.) I read the present submission as referring to all five documents tendered. 75 Section 135 of the Act permits the Court to refuse to admit evidence where its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party; or be misleading or confusing; or cause or result in undue waste of time. The Group 5B and 5F respondents rely on the first of these grounds. 76 I noted on 27 November 2002 that the respondents had indeed lost an opportunity to cross-examine indigenous witnesses in relation to the representations contained in the five documents tendered through Mrs Morgan (see [21] above). However, the absence of such an opportunity does not necessarily dictate the result of the balancing exercise involved in the first ground. 77 On 27 November 2002, the respondents submitted that prejudice was caused by the inability to cross-examine past witnesses on contents and context. No respondent has, however, identified any particular witness whose cross-examination would have been material or suggested the recall of any particular witness, despite the fact that I have made orders previously permitting the recall of indigenous witnesses at a respondent's request, and despite there having been further tranches of hearing in August, September and December 2003. 78 In relation to reliability, the applicants submit that the documents have been 'compiled by a person with good access to the best information available at the time, and motivated to do so carefully and accurately'. I agree. The information which the four documents of Mrs Schenk purport to record is logically and clearly arranged, for the most part, and the appearance of the documents suggests a careful and systematic collection and recording. 79 There is evidence of Mrs Morgan as to the way in which Mrs Schenk contemporaneously recorded the information in handwriting in an exercise book, relating to kinds and places of burial, and made a typed transcript of it some years later. There is evidence of her practice of questioning residents of the Mission on arrival and departure, and in using information gained to assist residents to obtain the social welfare benefits to which they may have been entitled from time to time. I have noted the inadequacy of Mrs Morgan's evidence in relation to the post-1953 period, but I do not think the documents are inherently unreliable, and I am not convinced that the admission of them will cause the respondents a danger of unfair prejudice which outweighs the probative value of the evidence. I decline to exclude the documents under s 135.

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Document 1.H.1. - Copy of facsimile letter dated 11 February 1999 from Daniel de Gand, Consultant Anthropologist, to Richard and Sandra Evans, with attached draft affidavit of Ted Evans 94 References to this document appear in document lists filed by the applicants on 30 January 2002, 7 March 2003, 23 April 2003 and 15 May 2003. 95 Since these lists were prepared, the applicants have located a copy of an affidavit sworn on 15 February 1999 by Ted Evans. The sworn affidavit resembles the draft. The applicants now seek to tender the sworn affidavit, rather than the draft. It is apparent from their submissions that they no longer press the tender of the facsimile letter from Daniel de Gand, Consultant Anthropologist, to Richard and Sandra Evans, enclosing the draft 96 Ted Evans is deceased, but remains a named applicant in proceeding WG 6010 of 1996, Ted Coomanoo Evans on behalf of the Koara People v State of Western Australia. I am deciding the Koara native title claim to the extent of its overlap with the Wongatha native title claim. Mr Evans was the father of Richard Evans, who is also a Koara native title claimant and who testified on 2 - 3 July 2002 in Kalgoorlie. 97 The basis for the tender is s 63(2)(b) of the Act (set out at [9] above). 98 Mr Evans is deceased and is therefore 'not available' to give evidence about the facts asserted in the representations contained in his affidavit: see Cl 4(1)(a) of Pt 2 of the Act's Dictionary. 99 A notice requirement applies to the adducing of evidence under s 63: see [10] - [13] above. The applicants did not give notice in accordance with ss 67(2) and (3), notwithstanding that the document was identified in the lists referred to in [95] above. The submissions of the Group 5B and 5F respondents do not address the question of the adequacy of notice, although they contend that the inability to cross-examine Mr Evans gives rise to prejudice that should persuade me not to admit it. 100 Should I give a direction under s 67(4) that s 63(2) is to apply despite the applicants' failure to give notice? I am required to take into account the matters identified in s 192(2) of the Act in so far as they are relevant. 101 My giving a direction under s 67(4) would not add to the length of the hearing. Would it be 'unfair' to the respondents to give the direction? They have been on notice for some time that the applicants intended to tender the draft affidavit of Mr Evans (the respondents do not submit that any prejudice arises from the fact that it is now the sworn final form of the affidavit that is in question). In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (2003) 197 ALR 131, I said (at [22]): 'I am concerned not to give any encouragement to the view that the requirement of notice need be complied with only where a failure to do so would cause specific prejudice. The giving of reasonable notice is clearly made by subs 67(1) of the Act a condition of exclusion by subs 63(2) of the hearsay rule. If reasonable notice is not given, the party seeking to rely on the hearsay evidence bears the onus of persuading the Court to exercise its discretion under subs 67(4).' 102 I repeat those comments here. 103 There has been no expense and no delay caused by the failure to give notice in the form mandated by s 67(2) of the Act. Importantly, the applicants identified the sections of the Act to be relied on in respect of this document in their list filed 15 May 2003. 104 I am persuaded that a direction should be given. I give a direction under s 67(4) of the Act that s 63(2)(b) is to apply, despite the applicants' failure to give notice as required by s 67(2). 105 The critical question is whether the asserted facts, the subject of the representations contained in his affidavit, were within the personal knowledge of the late Mr Evans. 106 In par 2 of his affidavit, Mr Evans stated: 'I have been informed of the matters set out in paragraphs 3 to 9 below partly by my father, Satie Evans, and partly by Koara old people and I believe that they are true. The other matters, except where indicated to the contrary, are within my own knowledge.'

[42]

107 The Group 5B and 5F respondents submit that the 'Koara old people' or 'old Koara people' (referred to in pars 2, 10, 11, 15, 17, 18, 21, and, by implication, par 19 of the affidavit) are not identified. In fact, in par 18 of his affidavit, Mr Evans stated that: 'The families of the old Koara people that I lived while I was working there now live in or around Leonora. These people are known by their white names such as Hogarth, Nixon, Lewis, Hill, Brown and Regan'. Mr Evans did not, however, provide more precise identification than this of the old people. 108 I have already dealt with par 2. In relation to pars 10-21, however, it seems to me that the submission of the Group 5B and 5F respondents, if I understand it correctly, involves a misconception. In pars 10-21, Mr Evans is making representations as to his own experiences. Take par 10 as an example: 'I grew up speaking the Koara language which I learned from my father and the old Koara people.' This is a representation by Mr Evans in relation to facts within his personal knowledge, not a representation made by the old people to him. At least generally, perhaps universally, the same can be said of the remainder of paragraphs 10-21. The Group 5B and 5F respondents do not distinguish between those paragraphs in submissions. Those respondents may wish to submit that the generality of the terms in which Mr Evans identified the old people should reduce the weight to be given to the hearsay evidence in question. I say nothing more of this, other than that it does not go to admissibility. 109 Subject to considering the matter next noted, I would admit pars 10-21 as containing representations by the late Mr Evans of asserted facts of which he had personal knowledge. 110 The Group 5B and 5F respondents submit that Mr Evans's affidavit should be excluded pursuant to s 135 of the Act, because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to them. This submission is based on the lack of any opportunity to cross-examine the late Mr Evans. The applicants, on the other hand, submit that this consideration should go only to weight. They draw attention to the provision of the covering letter and draft affidavit as assisting in the assessment of the weight to be given to the sworn affidavit. Since the letter and the draft affidavit are no longer pressed, they cannot provide that assistance. In any event, I do not see any basis on which they would assist, and none is specified in the applicants' submissions. 111 The lack of opportunity to cross-examine a witness on a document may, depending upon the facts, create such prejudice that justice requires that the document be excluded. However, as noted in [76] above, it should not be always assumed that the lack of an opportunity to cross-examine, without more, will signify that the danger of prejudice will outweigh the probative value of the evidence, for the purposes of s 135. While there is a danger of some prejudice where a witness is not available to be cross-examined on hearsay representations, the absence of cross-examination may be taken into account in relation to the weight to be given to the evidence: cf Lardil v Queensland [2000] FCA 1548 at [28] per Cooper J. 112 The respondents have not specified the prejudice which would be suffered if Mr Evans's affidavit were to be admitted. They have not, for example, identified any particular parts of the affidavit on which they would have wished to cross-examine Mr Evans. 113 The affidavit will be admitted into evidence, to the extent that it contains the representations made by the late Mr Evans in pars 1, 2, 3 (second sentence only), 4, 5 and 10-21.

[47]

The memorandum is signed and dated and further handwritten notations appear below the signature, apparently between 'Arpad' and 'Liz'. 116 The applicants tender this document under the business records exception provided for in s 69 of the Act (see [15] above) to the hearsay rule found in s 59 of the Act (see [6] above). 117 The memorandum does not appear on any of the lists of documents sought to be tendered by the applicants that have been filed in the proceeding. The document was not put to Mr Kalotas when he testified on 23 September 2003. 118 The applicants submit that the document '[o]n its face … clearly forms part of the records kept by the Western Australian Museum'. The Groups 5B and 5F respondents submit that this is not so. I agree. There is no notation, stamp or letterhead on the document that establishes that the document originated within or was created for the purposes of the Western Australian Museum. While Mr Kalotas's curriculum vitae, which is Appendix 3 to Exhibit A132 in the proceeding, discloses that he was employed as a 'Research Officer with the Department of Aboriginal Sites (WA Museum)' from 1987-1989, it also indicates that during 1986 - 1988 he '[c]ollaborated with Martujarra people of the Rudall River region in field-based ethnobotanical surveys'. A perusal of the memorandum suggests, because of the small (upside-down) notation at the top of the document, that it may have been a record of the 'Aboriginal Affairs Department', rather than of the Western Australian Museum. 119 It is impossible confidently to draw an inference as to the origin of the memorandum from its appearance and content. No evidence as to its provenance was led from the apparent maker of the document, Mr Kalotas, despite his presence in the witness box. I am not satisfied that the memorandum is a 'business record' within s 69. It is inadmissible. 120 On the basis that the memorandum is not admitted as a business record, the applicants seek to recall Mr Kalotas for the purpose of his testifying in relation to its provenance. 121 In Brown v Petranker (1991) 22 NSWLR 717, Clarke JA, (with whom Handley JA and Waddell AJA agreed), said (at 728): 'It is well-settled that the decision whether leave should be granted to recall a witness who has already concluded his or her evidence lies in the discretion of the trial judge. … In my opinion there is an overriding principle which should be applied and that requires the court to inquire whether the interests of justice require that leave be granted or refused.' The Court's discretion should be exercised in the light of the interests of justice in all the circumstances: Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd [1999] FCA 339 at [7] per Mansfield J. 122 Mr Kalotas testified on 23 September 2003. For reasons not connected with the tender of this memorandum, his recall during the 8 - 10 December 2003 tranche of evidence was in fact in the contemplation of the parties. The applicants undertook to have him available for cross-examination, but his recall was not pursued by the respondents. It was in the final hours of the December 2003 tranche of evidence that the applicants renewed their attempt to tender the memorandum. No explanation has been forthcoming as to why Mr Kalotas was not taken to the memorandum in his examination in chief on 23 September 2003, or recalled for the purpose in December 2003. There would be some inconvenience caused to the Court and the other parties by his recall for cross-examination now, when the evidence is closed (apart from the documentary tenders the subject of the present rulings) and all that remains is oral elaboration on written submissions. 123 I am not guided to a better understanding of the memorandum's importance to the applicants' case by their submissions. Those submissions note that the document was marked for identification during the testimony of Cyril Barnes on 27 June 2002, although that witness himself was not shown the document prior to his testimony. 124 The memorandum contains representations made by Mr Kalotas which relate to the knowledge of Cyril Barnes, Albert Newland, Scotty Lewis, and Roy Beaman of a site called 'Kantaly/Chain of Waterholes', northeast of the town of Leonora; and the knowledge of Dimple Sullivan of an unnamed site said to be northeast of 'Kelly Well'. (There is no explanation of the significance of the site named on the document as 'Soak Well' beyond the words 'Water source'.) 125 Cyril Barnes gave lengthy evidence on 7 March 2002 and again on 27 June 2002. In Kalgoorlie on 27 June 2002, he testified in some detail in relation to the Kantaly rockhole within the 'Chain of Waterholes' site. 'Chain of Waterholes' is a site named on the applicants' List of Places and Sites filed in the proceeding and admitted as Exhibit A3 on 5 March 2002. Mr Barnes said he first camped there as a child aged about six or seven, that he had been there with the Barnes and Thomas families, and that he had camped there 'lots of times, hundreds of times' both as a child and as an adult. He said he had learned the name of the 'Kantaly' site from 'the old people', and that it was a place where the 'Darlot people' and the 'Mount Margaret people' would meet for ceremonies. When asked how he knew this, Mr Barnes replied: 'The people tell me about it. Wangkayi'. 126 'Soak Well' is also named on Exhibit A3. Mr Barnes said he camped at 'Soak Well' more than once, the first time thirty or forty years ago with his father's family and his mother and father. He said: '[t]he Wangkayi word for this here is called Tjilkatjarra'. He said he had visited the site from both Leonora and Mt Margaret Mission, and testified in some detail about the different kind of bush tucker available in the surrounding country. He said he continued to go there to camp. Later, when he was asked more about Soak Well, the following exchange took place between Mr Barnes and counsel for the applicants: 'I'm not sure if you said something about this, Mr Barnes, when we had the video on, but was there something there at Soak Well that you described?

- - Yes. What's there? - - - I told you but I didn't want to talk about it. Oh, I see. Okay. Are you allowed to - - -No.
- - say anything like what it's like? - - - No.' Mr Barnes said nothing more of the site in his evidence. 127 Mr Barnes could recall meeting Mr Kalotas some years ago, at a time when he thought Mr Kalotas was working for the Western Australian Museum. When asked whether he had ever given Mr Kalotas any information about sites that were important for him, he said that he 'probably did' but could not recall what that information was. 128 Albert Newland gave evidence on 20-21 June 2002, at Kalgoorlie. He was not asked about the 'Kantaly' rockhole or the 'Chain of Waterholes'. 129 Neither Scotty Lewis nor Roy Beaman gave evidence. 130 Dimple Sullivan testified on 11 March 2002 and 12 March 2002 at Laverton Shire Hall. Mrs Sullivan gave evidence about having visited, or knowing stories about, numerous places within the claim area. A map she had drawn showing the location of sites surrounding Laverton, and an accompanying list of sites, were admitted as Exhibit A20. Mrs Sullivan was not asked about a site 'north east of Kelly Well', or any site containing 'square rocks, shaped like a shield on top of a hill', as described in the memorandum which the applicants now tender. 131 I am not persuaded that the document is of such significance in the proceeding that it would thwart the 'attainment of justice' to decline to allow the recall of Mr Kalotas. The evidence in question should have been led from Mr Barnes, Mr Newland and Mrs Sullivan, at least. Indeed, substantial evidence was led from Mr Barnes about the 'Kantaly' site, including evidence that his awareness of it dated back well before 1988 (the date of the memorandum), and well before the inauguration of native title law, to a time when he was six or seven years old. Numerous places were discussed by Mrs Sullivan in her evidence. The tender of the document cannot establish, for example, that Mrs Sullivan knows of a site north east of Kelly Well. If the applicants wished to establish this, evidence of it should have been led from Mrs Sullivan. 132 I decline to allow the applicants to recall Mr Kalotas.

Harrington-Smith on behalf of the Wongatha People v State of - [2004] FCA 338 - FCA 2004 case summary — Zoe

At a glance

Court

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Before

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Judgment (54 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (11)