Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland & Ors

REASONS FOR RULING 1 The applicants have tendered a report of Dr Nicholas Evans filed 26 November 1998, together with later addenda to it, as part of their case. The report is an anthropological report. It contains references to published academic writings, the work of other anthropologists in relation to the islands in the South Wellesley group, his own observations and researches concerning the Kaiadilt people, and statements made to him over time by a number of named Kaiadilt people as to their culture, laws, practices and beliefs and their social structures and relationships. Some of the statements made to Dr Evans by Kaiadilt people are recorded in the Kayardild language, in which Dr Evans is fluent. The report and addenda contain the opinions of Dr Evans in relation to certain of the factual matters in issue in these proceedings. The tender of the report and the admissibility of certain oral evidence of Dr Evans was objected to by the first, second and eleventh respondents. 2 The expertise of Dr Evans to express the opinions contained in the report is not challenged; nor is it contended that the opinions expressed in the report are not based on Dr Evans' specialised knowledge. Rather, it was submitted originally, that of the hearsay statements contained in the report, addenda, and oral evidence, those made by Kaiadilt people who were living at the time of the trial and who were either not called to give evidence or who were called to give evidence and did not give evidence in terms of the statements contained in the reports, should be admitted for the limited purpose of showing the foundation for Dr Evans' report. That is, that hearsay material falling within this category ought not to be admitted for the purpose of proving the truth of the content of the statements. 3 The objection seeks by recourse to s 136 of the Evidence Act 1995 (Cth) ("the Act"), to avoid the operation of s 60 of the Act in respect of the hearsay material which was objected to. 4 An alternative application has now been made pursuant to s 82 of the Native Title Act 1993 (Cth) ("the NTA") to dispense with the rules of evidence insofar as they relate to the hearsay material relied upon by Dr Evans to express any of the opinions contained in his report, and in lieu to deal with the statements as Olney J did in Yarmirr v Northern Territory & Ors [No 2] (1998) 82 FCR 533 at 562 - 563. In Yarmirr, his Honour said : "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." 5 The applicants submitted that the report of Dr Evans should be admitted into evidence without limitation and that no order should be made under s 136 of the Act or under s 82 of the NTA. 6 Section 82(1) of the NTA provides : "(1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders." 7 The effect of the subsection is that one starts from the premise that the rules of evidence, in this case the Act, will apply unless there are circumstances which persuade the Court that the rules should not, or to a limited extent, apply to all of the evidence sought to be tendered or particular categories of that evidence. To similar effect see Daniels v State of Western Australia [2000] FCA 858 at [27] per R D Nicholson J. 8 I turn first to the relevant provisions of the Act. Section 56 provides that evidence which is relevant in a proceeding is admissible unless otherwise provided in the Act. It is relevant where, if it were accepted, the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55(1). No distinction is drawn for this purpose between hearsay and direct evidence. 9 The hearsay rule is contained in s 59(1) of the Act, which states : "59(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation." 10 The term "previous representation" is defined as "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." 11 Section 60 of the Act provides : "60. 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." 12 In the present case the hearsay statements objected to are relied upon to satisfy the requirements of s 79 of the Act to enable Dr Evans' report containing his expert opinion to be admitted under s 56 of the Act. 13 The effect of s 60 was summarised by Hunt CJ in Common Law in the Court of Criminal Appeal (New South Wales) in Welsh v R (1996) 90 A Crim R 364 at 368 : "Section 60 provides that 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.' In terminology which is somewhat more familiar, s 60 refers to evidence of a statement made out of court which is admissible not in order to prove the truth of what was said but only to prove the fact that the statement was made Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970; Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 137 - 138; Ahern (1988) 165 CLR 87 at 94; 34 A Crim R 175 at 178. The distinction drawn is well illustrated by an article written by Mr Justice D G Ferguson, 'Hearsay Evidence' (1927) 1 ALJ 195. The effect of s 60 is that, once the evidence is admitted for that other purpose, it now becomes evidence which does establish the truth of what was said. The trial judge does, however, have power pursuant to s 136 to preclude the application of s 60 to any such evidence where there is a danger that such use of the evidence (that is, as evidence of the truth of what was said) might be unfairly prejudicial to a party or misleading or confusing." 14 However, s 60 was not intended to provide a gateway for the proof of any form of hearsay evidence however remote: Lee v R (1998) 195 CLR 594 at 603 - 604. It is always subject to operation of ss 135 and 136 of the Act and where there is a genuine dispute on the facts or the hearsay material is demonstrably unreliable, a Court might be expected to limit the operation of s 60 of the Act: Quick v Stoland (1998) 87 FCR 371 at 378, 382. 15 The admission of hearsay evidence, not falling within s 60, is otherwise to be determined by ss 63 to 66 and 69 to 75 of the Act inclusive, which deal with exceptions to the hearsay rule. 16 It is important to stress that s 60 is only concerned with the use of hearsay evidence which was admitted for the purposes specified in s 60. Section 60 is not concerned with the weight which is to be given to hearsay material which may, by the operation of s 60 be relied upon to prove the fact intended to be asserted by the representation. Notwithstanding the operation of s 60 of the Act, and even where s 136 of the Act is not invoked, the weight to be accorded to any particular evidence remains a matter for the court before which the evidence is adduced: Quick v Stoland at 375 - 376; Welsh at 369, 371. Once admitted, it is to be given such weight as the circumstances warrant: Walker v Walker (1937) 57 CLR 630 at 635, 636, 638. 17 Included in the circumstances to be considered in determining what weight should be given to the material, will be the circumstances in which the statement was made, whether or not that which was said was within the personal knowledge of the person making the statement, the likelihood or otherwise that the statement has been fabricated, whether the maker of the statement has been called to give evidence, and if so, the nature and effect of that evidence, including whether the maker has been cross-examined on the statement or generally, and whether the respondents have had a real opportunity to test the accuracy of the matters asserted in the report. These are not the only circumstances which need to be taken into account. Much will depend on the relevant circumstances identified in each particular proceeding. However, what needs to be kept clearly in mind is that s 60 of the Act does not endow hearsay evidence with any greater weight than the circumstances warrant; it merely means that there is some evidence of the fact asserted: Welsh at 371. 18 Section 136 of the Act provides : "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." 19 The respondents submit that they are prejudiced by the fact that certain of the statements contained in the report and addenda are from Kaiadilt people who have given evidence on Mornington Island and who did not give original evidence of the hearsay statement contained in the report. Other witnesses have given original evidence which contradicts or is inconsistent with statements contained in the report and addenda. Further, they submit that some statements in the addenda and the oral evidence of Dr Evans were unknown to them until Friday 27 October 2000 when copies of part of the addenda were provided and 30 October 2000 when additional parts of the addenda were provided and Dr Evans commenced to give his evidence in chief. 20 The applicants submitted that the respondents have had the report of Dr Evans for a considerable period of time and have had an opportunity to test all of the statements of Kaiadilt persons recorded in his report when those persons gave evidence on Mornington Island. They further submitted that if the respondents chose not to cross-examine on the statements, they cannot now claim to be prejudiced, nor challenge the weight to be attached to the statements because they have not been the subject of original proof by the relevant witness or subject to cross-examination. 21 The hearsay statements of Kaiadilt people contained in Dr Evans' report were not in evidence when the makers of those statements gave evidence on Mornington Island. The relevant evidence of each of those witnesses at the time when a decision to cross-examine fell to be made, was the witness statement of the witness tendered into evidence, such further documentary evidence as had been tendered through the witness, and the oral evidence in chief of each of the witnesses. The respondents were not obliged to then cross-examine on hearsay statements contained in a report which was not then in evidence when the applicants had not sought to elicit those statements as original evidence from the witness as evidence in chief, nor had they given notice under s 67 of the Act of an intention to tender the statement contained in Dr Evans' report pursuant to s 64 of the Act. 22 The second and eleventh respondents do not limit their objections to any particular statements contained in Dr Evans' report or the addenda to it. Their objection is general rather than specific. Their objection to the oral evidence is specific and is in relation to statements made to Dr Evans on a field trip with eight named persons, which statements have not previously been disclosed to the respondents. The objections of the first respondent are to specific parts of the report and to the same oral evidence of Dr Evans relating to the field trip. 23 The applicants were on notice prior to the taking of evidence on Mornington Island that a challenge may be made to the reliance on hearsay evidence contained in the report. In a letter to the Court which was sent in response to an inquiry by me, and which was copied to the applicants, the Queensland Crown Solicitor said : "The first respondent reserves the right to challenge the qualifications of the anthropologists to express such opinions, and to challenge reliance upon hearsay material where primary evidence could have been led and was not. The first respondent will submit that by and large the approach taken to the anthropological reports in Yarmirr v Northern Territory (1998) 82 FCR 533 at 561 - 563 should be followed in the present case, subject to s 82 of the Native Title Act." 24 If the Court allows the admission of the hearsay material objected to, but excludes the operation of s 60 to that evidence, the applicants will, if they wish to rely on any of the hearsay statements as proof of the facts contained in the statements, be required to call or recall the maker of the statement to either give oral evidence, or, having given the requisite notice under s 67 of the Act, seek to have the statement admitted under s 64 of the Act. 25 The second respondent submitted that it did not wish to force the applicants to recall witnesses or for the Court to have to reconvene at Mornington Island to allow for further evidence or for the cross-examination of witnesses. The principal concern of the second respondent, as stated by counsel, was that it did not want, by the operation of s 60 of the Act, to be prevented from submitting that any of the hearsay evidence should be given little or no weight and not relied upon because of the circumstances which attach to the tendering of it, including the circumstances identified by Olney J in Yarmirr which it must be noted was not a case to which the rules of evidence applied. The eleventh respondent adopted the same position as the second respondent. 26 For reasons given earlier, s 60 does not give to the hearsay evidence a weight or cogency which the circumstances do not warrant. The absence of an order under s 136 of the Act does not prevent the respondents from contending that in the circumstances of this case, the hearsay statements should be given little or no weight and should not be relied upon. Relevantly, those circumstances include the fact that no attempt has been made to tender original evidence of the contents of the hearsay statements when the witnesses gave evidence, the failure to call some witnesses at all, and that fact that certain oral evidence in inconsistent with the previous hearsay statement. 27 The respondents have expressly stated that they do not wish to bring about a circumstance where additional evidence from the applicants witnesses is necessary in consequence of an order made under s 60 of the Act or in consequence of imposing a condition that the makers of the statements be produced for cross-examination before s 60 shall operate in respect of the hearsay evidence. This is some indication that the parties do no consider that s 60 would operate so unfairly and prejudicially to them that it requires the making of an order excluding the operation of the section. They appear to be content to deal with the evidence on the basis of the weight if any to be given to it provided s 60 of the Act does not operate to prevent them from doing so. As stated earlier s 60 does not have that effect. 28 I am of the opinion that no sufficient reasons exist for making an order under s 136 of the Act limiting the use of the hearsay evidence objected to in the report of Dr Evans, the addenda to it and in his oral evidence. Although there is some obvious prejudice in relation to witnesses not being called or cross-examined on the hearsay material, that prejudice is to a degree off set by the effect to the weight of that evidence of it not having been tested by cross-examination. It follows that in my view no circumstances have been made out to dispense with the rules of evidence under s 82 of the NTA in relation to the report of Dr Evans, the addenda to it and his oral evidence in respect of hearsay statements given by living Kaiadilt persons contained in the report, addenda or oral evidence. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.