CHARLESWORTH J
1 In this proceeding the applicant seeks a determination of native title in relation to an area of the sea adjacent to the Great Australian Bight off the Far West Coast of South Australia. The trial is continuing. Subject to some rulings on objections, the parties' evidentiary cases are now closed. Closing submissions are yet to be made.
2 The Court is asked to make a ruling in respect of certain evidence contained in expert reports authored by a witness in the applicant's case. The reports are those of an anthropologist, Mr Robert Graham, marked Exhibit A21E and A22E. Together they may be referred to as the Graham Reports.
3 Significant portions of the Graham Reports refer to factual information expressed in a hearsay form, that is, by reference to out-of-court representations of fact made orally or in writing to Mr Graham by Aboriginal informants. The representations are in the nature of assertions of fact, the truth of which appears to have been assumed by Mr Graham as part of the factual foundation of his opinions.
4 The hearsay material forming the subject of argument falls within four classes. In the first class are out-of-court representations made by living Aboriginal persons who have given evidence-in-chief by affidavit in this proceeding, being representations on the same topics and to similar effect as that given in their affidavits. In the second class are out-of-court representations made by living Aboriginal witnesses concerning topics that were not canvassed in their affidavit evidence-in-chief. In the third class are out-of-court representations made by Aboriginal persons who have not been called by the applicant or any other party to give evidence on any topic. Included in that class is at least one person who is known by the other parties to have died since his out-of-court representations were made, as well as two persons who are known to be living. The fourth class is a little more ambiguous. It includes out-of-court representations by persons who have not been expressly identified by Mr Graham, typically in passages to the effect that informants have told him things. The evidence of out-of-court representations will be referred to collectively as the Informant Material.
5 The Informant Material is relevant. It is admissible except as otherwise provided for by the Evidence Act 1995 (Cth): s 56(1)
6 Section 59(1) of the Evidence Act establishes the hearsay rule. It provides:
59 The hearsay rule - exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
7 The Informant Material contained in the Graham Reports is prima facie excluded by that rule.
8 The hearsay rule is subject to exceptions, some of which apply to render the Informant Material admissible to prove the truth of the facts asserted by the informants, notwithstanding that the evidence is hearsay in its form. They potentially include s 72 (relating to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group) and s 81 (relating to admissions).
9 Of particular significance is the exception in s 60. It relevantly provides that the hearsay rule does not apply to evidence of a previous representation about an asserted fact that is admitted because it is relevant for a purpose other than proof of the fact. That exception applies whether or not the person who made the representation had personal knowledge of the asserted fact.
10 Section 76(1) of the Evidence Act establishes what is known as the opinion rule. It provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 provides that if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. It is not disputed that Mr Graham has specialised knowledge based on his training, study or experience as an anthropologist, so satisfying that discrete element of s 79.
11 Section 136 of the Evidence Act provides:
136 General discretion to limit use of evidence
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.
12 The Graham Reports were provisionally admitted into evidence before a series of previously foreshadowed objections to their admissibility were heard and determined. All of the parties acknowledged that they were not disadvantaged by the progress of the trial in that way. None of the parties sought to have the objections ruled upon before the completion of lay evidence or the completion of concurrent sessions of experts. None of them sought a ruling limiting the use of the Informant Material before their evidentiary cases were closed. These reasons relate to a series of objections originally advanced by the State of South Australia, the Commonwealth and four Indigenous respondents referred to as the Bunna Lawrie Parties, based on the same or similar premises. The parties agree that it is convenient for the Court to adopt a global approach to them, so far as that is possible.
13 As originally framed, the objections challenged the admissibility of portions of the Graham Reports themselves (including on the basis that they contained inadmissible hearsay). However, the present position of the respondents is that the Court should make a ruling pursuant to s 136 of the Evidence Act limiting the use that may be made of the Informant Material so as to preclude their use for a hearsay purpose. The respondents contend that it would be prejudicial to them if evidence of the out-of-court statements was used for the purpose of proving their truth.
14 The respondents' position proceeds from an acceptance that the Informant Material contained within the Graham Reports is relevant and admissible to explain the assumptions upon which the opinions contained in the Graham Reports are based, notwithstanding that it is hearsay in nature. That position is in accordance with authority, as discussed below.
15 The applicant's position is that a ruling pursuant to s 136 of the Evidence Act is neither appropriate nor necessary. It submits that the hearsay nature of the Informant Material is and should be a matter going only to weight.
16 In considering Counsel's submissions it is important to keep in mind the distinction between the admissibility of opinion evidence, the admissibility of evidence going to prove the truth of assumed facts upon which the opinion is based, and issues affecting the weight that might be afforded evidence falling within either category.
17 It is common ground that s 79 of the Evidence Act does not incorporate what is known at common law as the "basis rule": see Neowarra v Western Australia (No 1) (2003) 134 FCR 208 at [22] - [27] and the authorities there cited. That rule had three aspects to it, conveniently summarised S Odgers in his commentary of Uniform Evidence Law (16th ed, Law Book Co, 2021) (at [EA.79.240]:
… Thus, the expert must disclose the facts (usually assumed) upon which the opinion is based, [Bugg v Day (1949) 79 CLR 442 at 462 per Dixon J; R v Fowler (1985) 39 SASR 440; R v Lewis (1987) 20 A Crim R 267; 88 FLR 104 at 271 (A Crim R); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 348] the facts upon which the opinion is based must be capable of proof by admissible evidence [Ramsay v Watson (1961) 108 CLR 642 at 649; Paric v John Holland (Constructions Pty Ltd) (1985) 59 ALJR 844; 62 ALR 85; [1985] HCA 58 at 846] and evidence must be admitted to prove the assumed facts upon which the opinion is based [Ramsay v Watson (1961) 108 CLR 642 at 649; Paric v John Holland (Constructions Pty Ltd) (1985) 59 ALJR 844; 62 ALR 85; [1985] HCA 58 at 846 (ALR); Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; 85 ALRJ 694; [2011] HCA 21, Heydon J at [66]-[90]. See also R v Perry (1990) 49 A Crim R 243 (NSW CCA); Stefan v Ruban [1966] 2 NSWLR 622 at 626 and 630-631; Sych v Hunter (1974) 8 SASR 118 at 119]
18 As was said in Neowarra (at [23]):
While the legislation does not incorporate a 'basis rule', an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the Court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience. …
19 See also Harrington-Smith v Western Australia (2003) 130 FCR 424 at [25].
20 The interrelation between ss 60, 79 and 136 of the Evidence Act is conveniently summarised by Sundberg J in Neowarra as follows:
37 Because any common law basis rule has not been imported into s 79, so that at the stage of admissibility there is no requirement that the facts upon which the expert's opinion has been formed be supported by admissible evidence, the fact that an expert's opinion is based in whole or in part on a 'fact' supported by hearsay, is not a ground upon which the opinion must be rejected. In any event, an expert's opinion that is based on 'facts' supported by hearsay is prima facie admissible under s 60.
38 Subject to the application of ss 135 and 136, hearsay material on which an expert's opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion ('a purpose other than proof of the fact intended to be asserted by the representation'). If it qualifies, it can then be used as proof of the fact intended to be asserted. That is the view that has been taken in relation to expert evidence in Daniel, Quick v Stoland, Lardil and Harrington-Smith v Western Australia (2003) 130 FCR 424. See also Welsh v The Queen at 368 and Lee v The Queen at 604. The weight to be accorded to that evidence is a matter for the Court.
21 The circumstance that the Informant Material is relevant and admissible as disclosing the factual assumption upon which the opinions in the Graham Reports are based has the consequence that the exception to the hearsay rule in s 60 of the Evidence Act is enlivened. The effect of s 60 is that evidence of the out-of-court representations of fact constituting the Informant Material contained in the Graham Reports is admissible to prove the truth of those same asserted facts.
22 The hearsay nature of the Informant Material may of course affect the Court's assessment of the weight to be given to the opinions of Mr Graham, as well as the weight to be afforded to the Informant Material as evidence going directly to questions of fact in issue in the proceeding. Without having the benefit of full submissions on the topic, my preliminary view is that less weight should be given to hearsay assertions by persons who were available to give evidence on oath on the subject matter of the out-of-court representations they made to Mr Graham, but who have not been so called to give evidence on that subject matter.
23 The hearsay nature of Mr Graham's source materials may also affect the weight to be afforded to the opinions he expresses by reference to it. Questions of weight may be compounded where the manner of the author's drafting makes it difficult to discern whether he or she is advancing a factual proposition assuming the existence of particular underlying facts, as opposed to expressing his or her own opinion: Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [11]. Such matters affect the Court's assessment of the weight to be afforded the opinions contained in the Graham Reports insofar as they are based on the Informant Material, and may also go to their admissibility.
24 In Harrington-Smith, Lindgren J faced the unenviable task of dealing with 1,426 objections to expert reports in the course of a trial for the determination of native title. His Honour observed that there had been little or no attempt in the reports to address in a systemic way the requirements for the admissibility of an expert opinion. Counsel in that case had protested that to meet the requirements for admissibility of an expert opinion, it would be necessary for lawyers to become involved in the writing of the expert reports, and asserted that the reports were written in a way in which "those qualified in the particular discipline are accustomed to write". Justice Lindgren (with respect properly) gave those submissions short shrift (at [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 s 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.
(original emphasis)
25 His Honour went on to say that in many instances the reports before him did not clearly expose the reasoning leading to the opinion arrived at, nor did they distinguish between the assumed facts upon which an opinion is based and the opinion itself.
26 Many of the objections originally advanced in connection with the Graham Reports were founded on a failure by the author to specify the factual basis upon which his opinions were expressed. The applicant responded to those objections by drafting at least 75 new "footnotes" by which Mr Graham referenced the factual material forming the basis of his opinions. Many of the new "footnotes" contain references to source material contained in another exhibit (discussed below) without setting out its substantive content. The respondents complain that the many new footnotes appear to refer to hearsay material emanating from the same informants and as such should be encompassed within any ruling the Court may make under s 136 in respect of the Informant Material already contained (by reference or express recitation) in the Graham Reports.
27 Before turning to the requested ruling, it is convenient to note three further contextual matters affecting the admissibility and weight of the Graham Reports (and other reports having the same or similar qualities).
28 First, it should be emphasised that the evidence given by an expert need not necessarily be solely in the nature of "opinion" evidence. As Selway J observed in Gumana v Northern Territory (2005) 141 FCR 457, much will depend on the nature of the expert and the nature of the evidence (at [156]):
… For example, where the evidence of an anthropologist is the direct consequence of significant field work over a lengthy period, it may not be evidence of opinion at all. Rather, it may be the direct evidence of the observations that the anthropologist has made. Similar evidence might be given by others who have made similar observations: see Ritz Hotel Ltd v Charles of the Ritz Ltd (No 7) (1987) 14 NSWLR 104. This would include the claimants themselves, of course, but might also include missionaries, teachers, or those who have lived or worked with the claimants over a long period and are in a position to give useful evidence of what they have observed. Those observations, insofar as they consist of what the relevant person had observed are admissible to the extent that they are relevant.
29 His Honour went on to say that where the evidence of an anthropologist is derived from what the person has been told, the issue is more complicated: at [157]. Speaking before the enactment of s 72 of the Evidence Act, Selway J identified a number of bases upon which evidence of Aboriginal law and custom may be admitted either as an exception to the hearsay rule or characterised in such a way that the hearsay rule would not apply in any event. By way of example, his Honour identified that evidence of an anthropologist based upon long term field work with a claimant group may not be opinion evidence at all but rather direct evidence of fact. The respondents in the present case submit that the field work undertaken by Mr Graham in relation to the claim group in this proceeding does not meet that description.
30 I am satisfied that the Informant Material is principally evidence of what Mr Graham was told by members of the claim group and in large part is not material otherwise within Mr Graham's personal knowledge. I say in "large part" because in some instances Mr Graham deposes to observing the Aboriginal informants demonstrating or showing things to him and some of that reportage may well constitute direct evidence of fact, rather than evidence of an opinion as defined in s 76. I do not understand the respondents' requested ruling to extend to the few instances in which Mr Graham records a direct observation of fact and so will say nothing more on that topic for now.
31 Second, in addition to the Informant Material as it appears in the Graham Reports, there exist discrete written records of the conversations the Aboriginal informants had with Mr Graham (recorded in his field notes) and of prior written statements otherwise provided to him. The Court understands that material to be contained in a large exhibit which includes all of the material referred to by Mr Graham and other expert witnesses in the preparation of the many expert reports adduced in this proceeding, marked Exhibit S25. The material contained in Exhibit S25 was admitted into evidence on the basis that it comprised the material to which all of the parties' experts had referred in the preparation of their reports. That material was admitted to enable the Court to be satisfied that the source material referenced in the expert reports was faithfully reproduced. The Court will not read that material unless it is necessary to resolve any contentious issue as to the material upon which the experts based their opinions. Unless it is demonstrated otherwise, the Court will proceed on the basis that the Informant Material referred to in the Graham Reports is based on material recorded in Exhibit S25. However, references in these reasons to the Informant Material should not be confused with the material contained in Exhibit S25, as they are different things.
32 Third, the ruling presently under consideration does not extend to other hearsay material relied upon by Mr Graham in the preparation of his report, including his references to the works of other anthropologists, historians or genealogists of that class of material. The Full Court in Bodney v Bennell (2008) 167 FCR 84 said:
92 Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed) Vol 2, pp 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, 'would be to ignore the accepted methods of professional work and to insist on finical and impossible standards'. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court: see generally Borowski [1966] VR at 385-387; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35; H v Schering Chemicals Ltd [1983] 1 WLR 143 at 148-149; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) 214 ALR 608 at [8].
93 There is nothing in the Evidence Act that displaces this body of law. The Australian Law Reform Commission, on whose report the Act was based, said:
Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose - eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert's opinion - will be admissible also as evidence of the facts stated.
See Interim Report No 26, Evidence (1985) Vol 1, para 685.