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[2023] FCA 1391
Federal Court of Australia
2023-11-14
Perram J
Original judgment source is linked above.
Counsel for the Respondent: Mr G Johnson SC and Mr N Swan
Solicitor for the Respondent: HWL Ebsworth Lawyers
AND: COMMONWEALTH OF AUSTRALIA Respondent
order made by: PERRAM J DATE OF ORDER: 14 November 2023
Mr Julio Condori Amaru 55 Mr Condori was the Executive General Director of the Centre for Archaeological Anthropological Research and Administration of Tiwanaku from 14 May 2015 to 11 January 2021. He is now a Registration and Assessment Expert of Archaeological Projects and Historical Sites within the Bolivian Ministry of Cultures, Decolonisation and Depatriarchalisation. His work has involved the management of museums and the ruins of Tiwanaku, where he has also carried out research projects. 56 Mr Condori was called by the Commonwealth and provided reports dated 15 September 2021 and 11 January 2022. These reports were prepared with Mr Erick Leonel Ovando Lopez but Mr Lopez did not give evidence and I proceed on the basis that the reports are to stand as the evidence of Mr Condori. In Mr Condori's opinion the description, shape, style and type of manufacture of the Artefact indicated that it was most probably from the Tiwanaku ruins. He thought that the Artefact had been created between 300 and 800 AD. 57 Mr Condori gave his evidence on the first day of the trial from Bolivia by means of an imperfect video link and with the aid of a Spanish interpreter. He was extensively cross-examined. A number of specific challenges were made to Mr Condori's evidence which I will deal with as the need arises. However, more generally Mr Lancaster SC for the Applicant submitted that Mr Condori was an employed representative of the Bolivian government and could not be regarded as a truly independent expert. I accept this submission although noting that in the case of culturally important objects the experts in the area are often likely to include employees of the government of the nation in question. To my observation, Mr Condori was an enthusiast for the return of the Artefact to Bolivia. I do not think this impacted on his expertise but I have taken it into account in assessing the use to which his evidence should be put.
Dr Donna Yates 58 Dr Yates is an associate professor of criminal law and criminology at Maastricht University in the Netherlands and prior to this was a senior lecturer in antiquities trafficking and art crime at the University of Glasgow's Scottish Centre for Crime and Justice Research. She holds a bachelor's degree in archaeology from the Boston University which focussed on Latin American archaeology; a master's degree from the University of Cambridge which focussed on the international market for South American archaeological objects in response to changes in law and policy; and a PhD in archaeology also from the University of Cambridge. The subject matter of her thesis was 20th and 21st century Bolivian archaeological law and policy within the local and international context. She has published widely on Bolivian cultural objects and the trafficking of archaeological and historic objects out of Bolivia. In addition she spent two years in 2005 and 2006 working as an archaeologist at the monumental core of Tiwanaku. She has given expert commentary relating to Bolivian cultural objects to the Manhattan District Attorney's Office, the US State Department and the Bolivian Embassy in London. She also provides primary identifications of seized Bolivian cultural objects for the World Customs Organization. 59 Dr Yates was called by the Commonwealth and provided a report dated 22 October 2021 and a supplementary report dated 9 February 2022. In her opinion, the Artefact had been made at Tiwanaku by the Tiwanaku. She believed that it had been removed from Tiwanaku by looters around 1950. She gave her evidence by means of a virtual platform from the Netherlands during a concurrent session with Dr Vranich (who was in Warsaw) and Dr Young-Sánchez (who was in Auckland) and was examined extensively. 60 A number of specific challenges were made to Dr Yates's evidence by the Applicant and I will deal with these as I come to each topic. However, a general challenge was made to her expertise with which it is convenient to deal at this point. It was submitted that Dr Yates did not have a significant depth of personal experience in the identification of Tiwanaku artefacts. I do not accept this submission. Whilst it is true that on a number of topics Dr Yates deferred to the views of Dr Vranich I do not think that this signifies that she lacked significant expertise herself. Thus for example, although she thought that Dr Vranich could say more on the general topic of the Tiwanaku culture she was happy to do so herself and indeed did so: T70.1-15. The same may be said in relation to her deferral to Dr Vranich on the topic of the relationship between the Tiwanaku and the Wari: T76.8-15. I do accept that she did defer to the expertise of Dr Vranich on the topic of the source of basalt for Tiwanaku objects: T81.1-9. I do not accept the submission that T99.22-23 shows that Dr Yates deferred to Dr Vranich on the topic of the design features of the Artefact - this appears to be evidence about an entirely different topic. Likewise, it does not seem to me that Dr Yates deferred to Dr Vranich on the topic of 19th century expeditions at T10.32-33 although I do accept that Dr Vranich was more expert on that topic than Dr Yates. The Applicant submitted that in relation to significant issues, Dr Yates in her report 'simply adopted other analyses' provided to her by the Commonwealth. However, this submission does not appear fairly to characterise Dr Yates's consideration of those other analyses. I am satisfied that the sections of Dr Yates's report to which I was directed by this submission (Court Book ('CB') 78 and 81) show that she has independently evaluated the claims in those other analyses before discussing their significance. 61 The Applicant also drew my attention to a portion of Dr Yates's examination during the concurrent session at T114.1-4. The full passage is at T113.39-114.8: MR LANCASTER: Dr Yates, can I ask you a similar question to one of my earlier questions to Dr Vranich. Do you accept that it's a fair summary of your methodology that you came to an early first impression that this was a Tiwanaku object and after that point you were looking for conclusive proof that it was not a Tiwanaku object to dissuade you from that initial view? DR YATES: I think that that's a mischaracterisation in that, yes, being shown the piece, my initial reaction was that it was a Tiwanaku object. But my research methodology focused mostly on comparability. Not to disprove the Tiwanaku identification, but also to prove it. So this involved looking at comparable objects from archaeological excavations in museums. It involved reading academic papers and books. It involved finally getting around to reading a whole book on experimental archaeology related to the creation of Tiwanaku stonework. So I - I think that I approach this in a more holistic way than you're describing. Yes, there was an element for looking for derivations from possibility, but there is also an element of looking at, you know, comparing it to pieces that we know about to - just to see - see how it compares, if that makes sense. 62 The submission was that this showed that Dr Yates's expertise had been acquired quite recently rather than being the result of deep research and long-standing knowledge. I think there is little in this criticism. I do not see how a close examination of the iconography and provenance of the Artefact could not involve consulting other works and it would be implausible to think that any of the experts carried around in their heads the details both as to form and source of every Tiwanaku object. I do not think that this answer shows that Dr Yates was a Tiwanaku ingénue who had read up on the topic in order to give her evidence. 63 A part of Dr Yates's evidence touched on the topic of the location of the nostrils on the feline of the Artefact which I deal with in detail later in these reasons. However, her cross-examination showed that in between the two days over which the concurrent session was conducted and after the completion of the first day during which the topic of the nostrils had been introduced, Dr Yates had resorted to Twitter, as it was then known. She had done so to see if she could find a feline head with its nostrils set back from its teeth (the curious relevance of the nature of this inquiry will later emerge). The Applicant submitted that she had thereby attempted to 'crowd-source' this information and, as I apprehended the submission, this too showed that she lacked expertise. 64 I do not accept this submission. Dr Yates was simply trying to track down an object with the requisite snout. It is true that Dr Young-Sánchez had indicated in her report that the location of the feline's nostrils was anomalous, an observation which supported her predominant thesis that the Artefact was a modern fake or pastiche. No doubt, it would have been preferable if Dr Yates had endeavoured to find a feline whose nostrils were set back from its mouth when she prepared her report in reply. But I do not think it redounds on her credit either that she did not do so or when subsequently it became clear that she was being cross-examined closely about it, that she sought to redress this deficiency. That she chose to do so on Twitter is no doubt modern but I do not think that it shows that she is not an expert. An insinuation was made during her cross-examination that she had in fact been attempting to find an object with a particular provenance feature for the second day of the concurrent session. I record for completeness that I accept Dr Yates's evidence that the reason she went looking for the object was related to the nature of its snout. 65 I therefore reject the Applicant's challenges to Dr Yates's expertise. There was also a general submission that she was extremely reluctant to concede obvious propositions that went against the Commonwealth's case. I will deal with the individual criticisms on which the submission rests as they arise, however, as a general proposition I do accept that Dr Yates was, like Mr Condori, something of an enthusiast for the return of items of Bolivian cultural heritage. I do not agree with the Applicant that this means that her evidence is of no value but I do accept that in assessing her evidence one must filter out the reasoning on which her evidence rests (which is in my view valuable) from her background enthusiasm.
Dr Alexei Vranich 66 Dr Vranich is from the Archaeological Institute of Archaeology at the University of Warsaw. He received his PhD in 1999 for his dissertation entitled 'Interpreting the Meaning of Ritual Spaces: The Temple Complex of Pumapunku, Tiwanaku, Bolivia' and has held academic positions at several universities. The Pumapunku is the Gateway of the Puma at Tiwanaku and some of the evidence in the case turns on it. Dr Vranich has published widely on the Tiwanaku and has extensive archaeological experience in the field. This field experience included 10 years as the co-director and principal investigator of an archaeological project at Tiwanaku between 1996 and 2006. Having surveyed his curriculum vitae it is evident that he has devoted a significant portion of his professional life to Tiwanaku and the Tiwanaku culture. 67 Dr Vranich provided a report dated 17 May 2021 and a supplementary report dated 19 February 2022. His evidence dealt with three questions: (i) when was the Artefact made; (ii) where was the Artefact made; and (iii) in what circumstances was it removed from Bolivia? As to the question of when the Artefact was made, it was Dr Vranich's opinion that the design of the Artefact indicated that it had been made during the pre-Tiwanaku Period or the Tiwanaku Period which collectively went from 100 BC to 950 AD. He thought it likely that the date of manufacture was towards the end of these two periods and narrowed the range to 500-1000 AD which he identified as the Middle Horizon Period. 68 As to the question of where the Artefact was made, it was Dr Vranich's opinion that the Artefact came from the ruins at Tiwanaku. He accepted that the Tiwanaku culture was present in places other than Tiwanaku and that there were other sites in Chile and Peru. However, he did not think that the Artefact could have come from any site apart from Tiwanaku. The reason for this conclusion was that the Artefact was an advanced piece of stonework and advanced stonework in Tiwanaku culture had been found only at Tiwanaku itself. He accepted that it was true that a carved stone object had been found at the site of Lukurmata, one valley to the north of Tiwanaku (in Bolivia), but even that had been made at Tiwanaku and dragged over the low hills. 69 As to the question of how the Artefact came to leave Bolivia, Dr Vranich favoured the view that the Artefact had been removed from Tiwanaku during excavations conducted by the Argentinian archaeologist Dr Eduardo Casanova in 1934 and transported by train to Buenos Aires. 70 Dr Vranich gave his evidence by means of a virtual platform from Warsaw during the concurrent session with Dr Yates and Dr Young-Sánchez and, like Dr Yates, was examined extensively. A number of challenges were made to his evidence which I will deal with as the need arises. Like Mr Condori and Dr Yates, I do think that Dr Vranich was also an enthusiast for the return of the Artefact to Bolivia. However, as in their cases, I do not think that this requires the rejection of his evidence, just some care in its use.
Dr Margaret Young-Sánchez 71 Dr Young-Sánchez is presently the head of exhibitions and collection services at the Auckland Art Gallery Toi o Tāmaki. She holds both a Bachelor and a Master of Arts in anthropology from Yale University and a PhD from Columbia University. Her PhD dissertation was on the art of Peru's Central Coast from 800-1100 AD. She has extensive experience in pre-Columbian cultures generally and the Tiwanaku culture in particular having worked in her field for 40 years. For 30 years she served as a curator of pre-Columbian art at the Cleveland Museum and later the Denver Art Museum. In 2004, following years of research at Tiwanaku and at museums holding Tiwanaku artefacts, she organised an exhibition at Denver Art Museum entitled 'Tiwanaku: Ancestors of the Inca' which was (and remains) the most significant museum presentation of Tiwanaku art ever staged. 72 Dr Young-Sánchez was called by the Applicant and provided a report dated 21 December 2021. Her initial opinion was that the Artefact was a fake or pastiche but she had largely revised this opinion by the time of the hearing. In her view, the iconography of the Artefact had several elements which could not be found in other Tiwanaku objects. It was her view that the Artefact had been made by someone familiar with the Tiwanaku culture but inexpert in its application. 73 Dr Young-Sánchez gave her evidence by means of a virtual platform from Auckland during the concurrent session with Dr Yates and Dr Vranich. She was extensively examined. Both Dr Vranich and Dr Yates clearly respected the opinion of Dr Young-Sánchez although they differed from it. I accept the Applicant's submission that this shows that they accepted her views, especially on the question of provenance, as legitimate, defensible and respectable. I think it may fairly be said that all three witnesses respected each other's views. I do not think, however, this advances debate in either direction.
(b) The general history of the Tiwanaku 74 The experts were largely in agreement about the overarching facts of the Tiwanaku culture. Dr Yates described the Tiwanaku as an ancient culture that rose to prominence in the Andean Middle Horizon in the period from 600 to 1000 AD and which was based on the Bolivian high plain, or altiplano, in the Lake Titicaca basin. It appears to have been preceded by the Pucara civilisation. Dr Young-Sánchez said that Lake Titicaca and Tiwanaku had later been used by the Inca as sacred places of origin and pilgrimage until the Spanish conquest in the 16th century. The Inca capital, Cuzco, lies hundreds of miles north of Tiwanaku in Peru. 75 Dr Yates explained that the Tiwanaku culture was well-known for its masterful stonework which was particularly exemplified by the city of Tiwanaku. The city comprises monumental structures including temples and pyramids as well as large and small sculptural works. Dr Young-Sánchez thought that interest had long been focussed on Tiwanaku's finely cut and fitted stone masonry, monumental stone gateways, lintels and statues, some of which were decorated with animals, supernatural beings and geometric motifs. 76 All parties accepted that Tiwanaku was the primary city of the Tiwanaku culture. Dr Young-Sánchez said that only a small part of Tiwanaku had been documented in detail. Fundamental questions still remained about important aspects of the city including its construction history and the functions of its major architectural structures. 77 Dr Vranich observed that the Tiwanaku civilisation extended across the modern-day Bolivian border into what are now Peru and Chile, a view with which Dr Yates, Dr Young-Sánchez and Mr Condori agreed. Dr Young-Sánchez added that at one time it was thought that Tiwanaku was the capital of a great empire which had controlled territories in Bolivia, Chile, Peru and Argentina. However, the present view was that its sphere of direct cultural influence was more limited, extending only into southern Peru and northern Chile. Dr Yates felt that the primary archaeological sites were nevertheless in the Bolivian heartland. Mr Condori thought that the Tiwanaku culture was located on the south-eastern side of Lake Titicaca and radiated from Tiwanaku towards inter-Andean valleys, reaching the coastline, although this latter claim was refuted by Dr Vranich, who said that no Tiwanaku sites have been found along the coast: T71.20-23. 78 According to Dr Yates, the nature of the relationship between the sites in Chile and Peru and the Bolivian heartland has been the subject of much discussion. The discussion had ranged from those sites being colonies of the Bolivian Tiwanaku people, possibly sent there for the purposes of trade, through to them being politically separate from Tiwanaku. In her supplementary report Dr Yates indicated that most scholars now assumed that the true position lay somewhere between these two poles. Dr Young-Sánchez thought that these settlements were linked to Tiwanaku by trade and kinship ties, with llama caravans transporting goods between the regions. 79 However, there was no real dispute between the witnesses that the sites in Peru and Chile were Tiwanaku. Dr Yates and Dr Vranich each volunteered the connection and Dr Young-Sánchez gave slightly more detailed evidence about it, noting the tomb excavations which had been carried out in the Moquegua Valley in southern Peru and the Atacama Desert in Chile. I will refer to these sites as being Tiwanaku sites for the sake of convenience but in doing so I do not mean to step into the debate as to whether the people within the Tiwanaku sphere of direct cultural influence were the same people as the Tiwanaku at Tiwanaku and, in particular, the question of whether they were ethnically the same. For the purposes of the Applicant's case it is sufficient that they lie within the sphere of direct cultural influence. 80 It is open to infer, and I do, that the Tiwanaku culture rose to prominence roughly between 600 and 1000 AD and was centred around the ancient city of Tiwanaku on the south-eastern side of Lake Titicaca. The culture extended to sites in the Moquegua Valley and the Atacama Desert. 81 The difference between the witnesses about the Tiwanaku settlements in Chile and Peru lay in their differing views about the extent of the stonework carried out in those places. I will return to this topic when I come to deal with the important issue of basalt below. 82 A general point Dr Young-Sánchez made about the Tiwanaku culture was that the number of objects which were in museums and collections was small when compared to other Andean civilisations such as the Inca, Moche or Wari. She thought that this related not only to the export restrictions imposed by the Bolivian government in the 20th century but also the Tiwanaku's limited manufacture of artworks which were in media durable enough to survive centuries of burial in the Andean altiplano's harsh climate.
(c) Could the Artefact be a kero? 83 Dr Yates explained that a kero was a particular vessel shape common to the Andes typically consisting of a cylindrical cup without a handle and with a flaring upper edge. Here are some pictures of Tiwanaku ritual keros: 84 Dr Young-Sánchez added keros were used at Tiwanaku and elsewhere in the Andes for drinking corn beer which was an essential element in feasting and religious ritual. On the other hand, Mr Condori was of the view that kero ceremonial vessels were peculiar to and characteristic of the Tiwanaku culture. I do not accept Mr Condori's evidence to the extent that it suggests that there are no keros in other ancient Andean civilisations. It is contradicted by the evidence of Dr Yates and Dr Young-Sánchez. 85 Dr Yates explained that whilst ceramic keros are common at Bolivian Tiwanaku sites, the Artefact was made from stone which made it extremely rare in the canon of known Tiwanaku sculptural works. In her report, Dr Young-Sánchez thought that basalt had been used at Tiwanaku for making vessels such as keros. This evidence may be reconciled by concluding that basalt keros at Tiwanaku were very rare although not unknown. On the other hand, it was also Dr Young-Sánchez's evidence that basalt keros found at Tiwanaku were typically much smaller and had much thinner walls than the Artefact. She also made the point, which has the advantage of common sense, that the Artefact's thick walls, large size and heavy weight made it completely impractical for use as a drinking vessel. It was her view that there were no comparable keros in Tiwanaku culture. I accept this evidence. 86 I therefore find that: (a) the use of basalt to make keros at Tiwanaku was relatively unusual but the extant basalt keros are smaller, have thinner walls and weigh less than the Artefact; (b) the Artefact is not practical for use as a kero in the sense that it is hard to imagine a person comfortably quaffing corn beer from it; and (c) its weight and size make it an especially rare find. The Applicant sought to muddy these waters at ACS [88(a)] by pointing out, correctly, that other Andean cultures also worked in basalt, instancing a winged figure currently held in the National Anthropological Museum of Peru at Lima. As I later explain, this object appears to have been made by the Pucara civilisation which preceded the Tiwanaku civilisation. However, in the absence of a suggestion from the Applicant that the Artefact was made by the Pucara civilisation (which there was not), I do not see that this has any relevance. More generally, whilst I am content to assume that there were other Andean civilisations which worked in basalt, in the absence of any evidence which suggests that the Artefact was made by such a civilisation, this likewise goes nowhere. For completeness, I note that the Applicant's submission at ACS [88(a)] also references a 'winged puma figure' located at page 5 of Exhibit 3. This is the object that was purchased by the Peruvian doctor at Puno, now located at the Ethnological Museum of Berlin, and is believed to be a Tiwanaku object. I have proceeded here on the basis that it is the Pucara object being referred to as this submission would not make sense otherwise. 87 Returning to the task at hand, the conclusion that the Artefact is not actually likely to have been used as a kero does not negate the possibility that it is a sculptural depiction of a kero rather than an actual kero. It will be recalled Dr Young-Sánchez herself gave evidence that the kero was an essential element in feasting and religious ritual and Dr Yates expressed the opinion that the kero was significant in the Tiwanaku culture. It would therefore not be entirely surprising to find sculptural depictions which include keros. While this deductive observation would of course be purely speculative without more, it is borne out by the evidence of Dr Yates who provided an example of a large stone figural sculpture at Tiwanaku holding a kero. Dr Yates also said there were other examples at Tiwanaku and nearby Bolivian Tiwanaku sites of stone figures holding keros. This was consistent with the evidence of Mr Condori who said that keros could be found in the sculptural iconography of the Tiwanaku culture. In her report, I did not apprehend Dr Young-Sánchez to take issue with this proposition which I therefore accept. 88 Thus whilst Dr Yates accepted that generally keros were ceramic vessels she thought the Artefact appeared to be a stone rendering of a ceramic kero. Dr Vranich went somewhat further. It was his view that the Artefact was ritual in nature. First, he thought that the intact nature of the Artefact indicated that it had been buried (and therefore protected from the depredations of open exposure). Whereas Professor Mavrogenes had deduced from the Artefact's patina that it was at least hundreds of years old, Dr Vranich saw evidence that the Artefact had been very often touched. In particular he thought that the surface of the protruding feline head had a gloss, an observation from which he was inclined to infer that it had been frequently touched and had therefore been an object of veneration. The burial of a venerated object suggested to Dr Vranich that it was ritually significant. 89 I would accept Dr Vranich's evidence that the Artefact had been buried because it is difficult to see how an object at least hundreds of years old could be in such an intact condition otherwise. However, I do not think I could find on the state of the evidence that the Artefact had been venerated because of the patination pattern on the feline head which, at this stage, cannot be said to be more than admittedly informed speculation. As I have explained above, I do not mean by this to suggest that the Artefact was not venerated as Dr Vranich suggests, only that in the context of a civil trial I am not affirmatively persuaded that this is so. 90 However, I am satisfied that the Artefact was ritual in nature. Dr Vranich's view that the Artefact was ritual is consistent with the following facts: (a) its fashioning from basalt was labour intensive and suggests that it was a prestigious object; (b) it is a depiction of a kero; (c) keros were used in ritual ceremonies involving the drinking of corn beer; and (d) the Artefact is not practically useful for drinking corn beer. This view is also supported by the evidence of Mr Condori who likewise thought that the Artefact was used for ceremonial or ritual purposes. The Applicant submitted that Mr Condori provided no evidentiary basis for his conclusion that the Artefact was ritual in nature (ACS [52(e)(i)]), which is correct. On the other hand, I do not accept the criticism made by the Applicant at ACS [52(e)(ii)] that there was a tension between Mr Condori's evidence that ceremonial or ritual objects were not found outside Tiwanaku and the evidence he gave at T43.8-19 that ceremonial objects assumed to have been made at Tiwanaku were found in Chile and Peru. At T95.44-45 Dr Young-Sánchez thought that feline figures tended to get used in high-prestige objects which were sometimes religious. Further, when giving evidence about the rate of change of stylistic elements part of her reason for saying that variations would be slow was that the Artefact had a religious purpose (T107.12), a view with which Dr Yates agreed ('Absolutely, I completely agree with that'): T107.17. 91 I am satisfied that the Artefact served a ritual purpose of some kind. 92 The evidence can reasonably sustain the drawing of an inference that the Tiwanaku culture included not only ceramic and occasionally smaller basalt keros which were used for ritual or feasting purposes but also sculptural depictions of keros in stone. I am affirmatively persuaded that this is the case and therefore draw this inference. 93 As such, I do not accept Dr Young-Sánchez's point that the basalt Artefact's cumbersome size and weight make it unprecedented in the Tiwanaku culture. No doubt this is true if attention is confined to actual drinking vessels but I do not think that Dr Young-Sánchez's evidence dealt with the implications of the Artefact perhaps being a sculptural depiction of a kero rather than a functional kero. As Dr Vranich observed on this topic, many people wear crucifixes whose design features differ markedly from the real thing. 94 Of course, this does not mean that the Artefact is, in fact, a basalt depiction of a kero. Rather the point is that the fact that the Artefact is made from basalt and is too large and heavy for practical use as a kero does not negate the possibility that it is a sculptural depiction of a kero.
(d) The iconography and morphology of the Artefact 95 At this point it is helpful to provide an additional angle from which to view the Artefact: 96 Most of the evidence about iconography and morphology was given by Dr Yates, Dr Young-Sánchez and Mr Condori although Dr Vranich was also cross-examined about it. Dr Yates thought that the Artefact was decorated with incised geometric and faunal designs and was fronted with the projected head of a feline on a square base. I did not apprehend this evidence to be disputed by anyone. Rather, the debate centred around what the designs depicted actually were and the extent to which the designs and the projected feline head on a square base could be said to be within the canon of the Tiwanaku culture. 97 Thus what is required is a comparison between the Artefact on the one hand and, on the other, what is known from the archaeological record of the Tiwanaku about incised designs and feline heads projecting from square bases. 98 Dr Young-Sánchez opened the batting on this topic by pointing out the paucity of the archaeological record and the fact that the Tiwanaku culture had been understudied in relation to other pre-Columbian cultures. She observed that the study of the specialised art history of the Tiwanaku, including their stylistic conventions, had been hampered by the very limited number of trained researchers working in the field as well as the comparatively small body of well-preserved artworks. Whilst it was true that stone, ceramics, metal and bone were preserved in the archaeological record, other less durable materials had not endured at Tiwanaku and the vast majority of excavated artefacts were fragmentary in nature. The preservation of less durable artworks was, on the other hand, greater in extent in the more arid regions of Peru and Chile. It is also useful to recall her evidence that the documentation of the Tiwanaku site is not yet anywhere near complete. She also thought that there was only a tiny body of published art historical literature. 99 To my mind Dr Young-Sánchez's observation does not perhaps go very far on this particular topic. As will be seen, the evidence of Dr Yates attempted to match the iconography of the Artefact to what is presently known about the iconography and morphology of the Tiwanaku culture. The fact that the available range of Tiwanaku objects is limited to what is available in stone, ceramics, metal or bone does not really detract from her point that the incisions on the Artefact and its protruding feline head correspond with what is apparent from the archaeological record which already exists. 100 The fact that less durable objects have not endured into modern times or that many of the durable items are fragmentary in nature does not detract from the point Dr Yates is making. In particular, in the counter-factual world in which what remains at Tiwanaku now includes in an intact state all the objects which are fragmentary and all of the objects made from less durable materials, this would not logically be capable of detracting from Dr Yates's matching of the iconography of the Artefact to those objects which have in fact endured into modern times. For example, if, as Dr Yates thought, the use of a deer motif was distinctive of the Tiwanaku culture because a deer motif could be discerned in the existing archaeological record, this conclusion could not be dented merely because many objects may have been lost which might have proved the popularity amongst the Tiwanaku of, say, an eagle motif. Put another way, future finds will not be capable of extinguishing the fact that what has already been uncovered shows that the Tiwanaku used deer motifs. I do not think therefore that the limited nature of the archaeological record can rationally erode Dr Yates's opinions on the Artefact's iconography. 101 Further, whilst I accept that less durable objects have been retrieved from the sites in Chile and Peru, Dr Young-Sánchez did not point to any of these objects in her explanation of why the Artefact was not an example of the Tiwanaku culture. One reason for this may be the logic of the previous paragraph. At best, they might have shown other features not present on the Artefact but this would not have advanced the debate for the reasons I have given. 102 Having cleared that point away, the parties were in dispute about the correct interpretation of six stylistic elements of the Artefact. These were: stylised figures which appear on the body of the vessel; a pattern on the lower portion of the vessel referred to as a meander or Greek key; a band around the top of the vessel which contains small rectangles; the feline head which protrudes from the body of the vessel and is mounted on a square base (and the related question of whether the Artefact depicts a kero or an incensario); the crossed canines of the feline and the number of its front teeth; and the position of the nostrils on the protruding feline head. 103 The Applicant submitted that Dr Yates's evidence about these matters was unsatisfactory. This was because, despite having dealt with the topic of feline iconography at s1.3.3 of her report and with incised motifs on Tiwanaku stonework at s1.3.4, Dr Yates had failed to bring forth in her evidence any examples of a Tiwanaku object which had three particular features. These were: (i) the rectangles in a non-segmented band; (ii) what was said to be stylised bird motifs; and (iii) the Greek key motif: ACS [56(b)]. 104 What precisely these features are may be postponed until I deal with each of those matters in detail. The present point is that it was put to Dr Yates that despite the Artefact having these three features she had not included in her report (and did not provide during the concurrent session) any Tiwanaku object which had any of these three features. The relevant part of the transcript is T115.7-42: MR LANCASTER: You got that one? So, I think the top right-hand image is our object, a close-up image of the side of the vessel. And what I want to suggest to you - or what I want to ask you is, you said that these - you considered ceramics and other objects or things with Tiwanaku designs on them. There are three aspects of this closeup photograph that I want to suggest to you you have not brought forward any photographic evidence of any Tiwanaku object with a similar design. The first of it is at the top of the image, rectangles in a non-segmented band. The second of them is, in the middle of the picture, the stylised bird head motifs. And the third is, at the bottom of the image, the geometric rectangular form of the recurring key motif. So, can you answer that all at once? I know it has three parts, but I suggest to you ..... those three design features are unprecedented according to your own evidence. DR YATES: I should say that this isn't my evidence. MR LANCASTER: No. DR YATES: But also, I have not been asked by anyone, to mirror what Dr Vranich has been saying, to comment extensively on very particularly this one motif, and thus have not been given the opportunity to look at it. But you're also talking about a very limited number of objects. And if - if - the scale of the amount of review that we would need to do to definitively say that no Tiwanaku object has this motif is so great it's almost indescribable. I've excavated at Tiwanaku on Dr Vranich's project, and in a single hour of a single day in the middle of the monumental core, I would have wheelbarrows full of painted Tiwanaku ceramics. Any piece of any one of those may have exactly the stylistic elements that you're talking about. We're looking at three things, and there's a bazillion things to review. But ultimately, I mean, you're pointing to the snakes on the Bennett stela. It is very easy to argue, and people do, that this kind of Greek key meander style, it becomes the stylised version of these snakes. It's the extraction out into something more stylised. And you've picked one qiru out of again, literally, I excavated there for two days - so many qirus that we could be looking at. So I would be happy to produce a report of some sort about the - these particular stylistic elements, but I - I don't think looking at these two limited pictures says anything at all about their range of possibility for Tiwanaku objects. 105 An assessment of the correctness of the Applicant's submission requires an appreciation of the way in which the evidence in the case was prepared. In her report in chief Dr Yates said that the presence of the feline head was typical of the Tiwanaku as were the incised motifs on the side of the Artefact. In her report in response, Dr Young-Sánchez expressed the principal view that the Artefact was a fake or pastiche. She did however give evidence about the iconography of the Artefact. In particular, she gave evidence that the incised figures were birds and would usually be used in a secondary way as part of another feature rather than, as they are on the Artefact, as primary motifs. She did not in her report, however, say anything about the rectangles in the band or the Greek key feature. Thus when Dr Yates prepared her report in reply she had no reason to consider the rectangles or the Greek key feature which Dr Young-Sánchez had not raised as an issue. Dr Yates in her report in reply accepted that the combination of the iconographic elements was probably unique but did not in terms respond to Dr Young-Sánchez's point that the use of the bird motifs was uncharacteristic. 106 It was in that procedural context that Dr Yates was then asked the question set out above. The suggestion that 'those three design features are unprecedented according to your own evidence' can only have been a reference to Dr Yates's reply evidence that the combination of the iconography on the Artefact was probably unprecedented. Contrary to the submission made by the Applicant at ACS [56(b)], the answer Dr Yates gave was not inconsistent with the evidence she had given about feline iconography. Indeed, the question she was asked and the answer she gave had nothing to do with the feline head. Of more substance is the Applicant's suggestion that Dr Yates's inability to comment on these incised elements of the Artefact sat uneasily with the fact that she had dealt with the topic of incised motifs in her report in chief at s1.3.4. However, once the procedural history is brought to account, Dr Yates had no reason to do so in her report in chief where she simply said that incised motifs were typical of the Tiwanaku. Further, since Dr Young-Sánchez had not said anything in her evidence about the band containing the rectangles or the Greek key feature, no criticism can be levelled at Dr Yates for failing to have identified prior to the time she was asked the question whether there were Tiwanaku objects which displayed those features. 107 In relation to the bird head motifs, this is potentially not so. Dr Young-Sánchez's evidence, with which Dr Yates had been provided, was that the bird head motif was not used as a primary motif. In that regard, Dr Yates did have the opportunity, if she wished, to locate a Tiwanaku object which did feature a bird head motif as a primary feature. However, this is not the question she was asked. Instead of being asked whether, as the evidence of Dr Young-Sánchez suggested, she was aware of an example where bird head motifs were used as primary features, the question was whether she was aware of the use of stylised bird head motifs; i.e., no reference was made to their use as primary features. As will be seen, Dr Young-Sánchez herself accepted that stylised bird head motifs were used by the Tiwanaku; her point was that they were not used in the way depicted on the Artefact. Thus this aspect of the question misfired. 108 As such, I see nothing in the answer that Dr Yates gave which warrants criticism. In effect, the submission is that she is to be criticised for failing to foresee that she would be cross-examined about two iconographic features of which she had no notice. In relation to the one iconographic matter of which she did have notice, the question incorrectly asserted to her that stylised bird head motifs did not feature in Tiwanaku iconography when the Applicant's own evidence was to the contrary. I therefore reject this criticism of Dr Yates. 109 Turning then to the particular iconography debates:
(i) The highly stylised figures 110 Dr Yates thought that Tiwanaku stonework was characterised by fine line incision decorations depicting geometric forms of highly stylised anthropomorphic or animal figures. It will be recalled that it was the rough edges of these fine line incisions which had persuaded Ms McHugh that the Artefact had been manufactured with the percussive action of a sharpened tool of non-modern mechanism. Dr Yates said that the detail of these highly stylised figures appearing on Tiwanaku stonework could generally be difficult to observe in photographs. However, in this case, the photographs permitted Dr Yates to closely inspect the Artefact and discern the details. 111 Dr Yates thought that the highly stylised figures depicted on the body of the vessel were deer, shown in profile. Mr Condori, on the other hand, thought that the figures were the heads of felines which had been elongated towards the protruding feline head. Dr Young-Sánchez disagreed with these opinions, chiding Dr Yates and Mr Condori for their views and strongly insisting instead that the figures were the heads of birds. After Dr Young-Sánchez expressed her admonitory opinion Dr Yates prepared a supplementary report. In this report, she did not enter upon the debate as to whether the figures were the heads of deer or birds. Although she was cross-examined to suggest that the bird head motif was unprecedented in the Tiwanaku archaeological record, I did not apprehend her to concede that the figures were the heads of birds rather than those of deer and certainly this was not put squarely to her. Likewise, Mr Condori was not confronted on his opinion that the figures were elongated feline heads. 112 I have not found that inspection of the various photographs of the Artefact assists in the resolution of this debate. For my part I cannot tell whether what is depicted are the heads of birds, felines or deer but no doubt this is because I do not work in the field of pre-Columbian iconography. I thus reject the Applicant's submission at ACS [84] that from a lay person's perspective the Artefact does not look like the various Tiwanaku artefacts which appear in the evidence. I am also not sure I agree with the premise of the submission about what the lay person thinks. For what it is worth, to me the Artefact looks like a kero with a cat sticking out the side of it. My opinion, however, is worth nothing because I am quite confident that this is not an area in which the opinion of lay persons matters. 113 As it happens, however, I also do not think that the question of whether the motifs are birds, felines or deer matters. Whether they are birds, felines or deer, Dr Young-Sánchez accepted at T109.25 that the figural motifs on the Artefact were elements found in Tiwanaku art. If it were germane, I would accept Mr Condori's evidence that felines were common in Tiwanaku iconography - the chachapumas instanced by Dr Yates and discussed later in these reasons make this point very clearly. I would also accept Dr Yates's evidence that the deer motif is one of the most important stylistic elements in Tiwanaku iconography, a view from which Dr Young-Sánchez did not dissent. 114 Whilst Dr Young-Sánchez thought the figures were the heads of birds, she did not give evidence that the heads of birds were not found in Tiwanaku iconography and indeed she accepted at T109.30 that the use of the heads of birds was found in Tiwanaku iconography. Her point was somewhat different and was that the figural motifs had been used in a way which was not typical of Tiwanaku art. The use was atypical because figural motifs of this kind were 'normally small-scale secondary elements' (T109.30-31) and were not used in Tiwanaku iconography as prominent features or principal decorative motifs (as they were on the Artefact). Such elements generally appeared as an element in a larger and more complicated image or were in a secondary position such as within a border band. 115 I do not accept this aspect of Dr Young-Sánchez's evidence in the absolute form in which it was expressed. Whilst I would accept that no examples have been produced from the archaeological record which include the use of figural motifs as a prominent and principal design feature, I am unpersuaded that this entails that the Artefact is not Tiwanaku in origin. There is no doubt that the heads of felines, deer and birds are used in Tiwanaku iconography. The real question is whether one can say, as Dr Young-Sánchez does, that the fact that there are no examples with such a motif being used as a prominent and principal feature entails that the Artefact is not an example of the Tiwanaku culture. 116 Dr Yates, for her part, certainly did not accept that this could be correct, saying forcefully that this approach put at nil the possibility of stylistic variation, a point which may have some force when one recalls that the Tiwanaku culture was extant for at least four centuries (and on the evidence of Dr Vranich possibly a little longer even than that). On the other hand, Dr Young-Sánchez thought, and Dr Yates agreed, that variation of this kind was likely to be slow given the religious nature of the Artefact and the laborious manner of its manufacture: T107.8-21. I take Dr Young-Sánchez's point but I do not accept that Tiwanaku iconography came into existence in a fixed form and thereafter for several centuries remained entirely invariant. I thus do accept Dr Yates's point that variation is possible. 117 The resolution of this issue might at that point have been regarded as somewhat equivocal but I consider that Dr Young-Sánchez's evidence that the Artefact was made by someone familiar with the Tiwanaku culture although inexpert in its application must at this point be reintroduced to the debate. Given that the Artefact is at least hundreds of years old, the available range of persons who could meet that description is necessarily limited. There was no evidence of any trade in Tiwanaku objects for their cultural value prior to the 19th century and there was no evidence that anyone would assemble an object using Tiwanaku cultural motifs between 1000 AD when the culture apparently collapsed and the early 19th century when Europeans first became interested in the ancient art and archaeology of the Americas (as opposed to its treasure). In particular, the Applicant did not lead any evidence, and Dr Young-Sánchez did not suggest, that the Inca or the Aztec civilisations were in the habit of producing imitation Tiwanaku artefacts. Further, the evidence cannot sustain a conclusion that that there existed after the Spanish Conquest any expertise in stonework sufficient to make the Artefact in the knowledgeable but inexpert fashion suggested by Dr Young-Sánchez even if someone had been unexpectedly gripped by a desire to do so. The Applicant did not advance a hypothesis that the Artefact had been made by the Wari, for example (although I deal with this possibility below). 118 The Applicant sought to make a strength of this weakness. It submitted at ACS [85] that the fact that Dr Young-Sánchez had at first thought that the iconography and morphology of the Artefact was so unusual that it was most likely a fake or pastiche emphasised just how unusual from a Tiwanaku perspective it was. I see matters the other way around. The fact that Dr Young-Sánchez's assessment of the Artefact led her to believe it was a fake or pastiche in my view tends, if it does anything at all, to weaken the balance of her evidence. Dr Young-Sánchez was certain it was a fake or pastiche and in that regard she was, with respect, demonstrably incorrect (as she later accepted). As it happens, I do not regard Dr Young-Sánchez's evidence about iconography or morphology as being weakened by this aspect of the matter but I certainly do not accept the Applicant's more ambitious submission that somehow by being wrong about the fake nature of the Artefact the value of Dr Young-Sánchez's evidence on iconography and morphology was strengthened. 119 Once it is accepted therefore that the creator of the Artefact was familiar with Tiwanaku culture and that the Artefact is at least hundreds of years old, the possibilities as to its date of manufacture narrow to times either contemporaneous with the Tiwanaku culture or following not long in the wake of that civilisation's collapse. In either case, Dr Young-Sánchez's evidence implies that the creator was inexpertly attempting to effect the style of the Tiwanaku culture. 120 The competing hypotheses are then only these: (a) the use of the figural motifs in a prominent fashion is evidence that within the Tiwanaku culture the way in which figural motifs were used was subject to some variation; or (b) the variation evident on the Artefact indicates that, roughly contemporaneously with the Tiwanaku culture, someone familiar with that culture but lacking a mastery of its correct application created the Artefact in a fashion which a craftsman within the Tiwanaku culture would not have done. 121 One matter which undercuts the strength of (b) is Dr Young-Sánchez's own evidence that the archaeological record is incomplete, even taking into account Dr Vranich's evidence that there have been extensive excavations at the Tiwanaku sites in the Moquegua Valley and San Pedro de Atacama. Whilst I have explained why I do not find that evidence persuasive for the purposes of diminishing Dr Yates's evidence concerning what the extant archaeological record does show about the iconography of the Tiwanaku culture, I do think it provides some reason to be a little circumspect in discerning stylistic prohibitions from that same record. I would accept that elements appearing in the extant archaeological record may be used as positive selection criteria to gauge the possibilities of the sculptural art of the Tiwanaku but I am more sceptical about the use of the archaeological record as a negative criterion of exclusion. For example, modern films contain depictions of electric cars from which one can certainly infer that some people in the 21st century drive electric cars. However, modern films do not generally contain depictions of smoking but it would be erroneous to infer that smoking was not an element of 21st century Western culture. 122 I therefore prefer the evidence of Dr Yates on this question to that of Dr Young-Sánchez. This is not the same as accepting that it has been shown on the balance of probabilities that the animal motifs on the Artefact are definitively Tiwanaku in origin. Rather, the findings I make are: (a) it is not shown by Dr Young-Sánchez's evidence that the figural motifs are not Tiwanaku in origin; (b) the stylised figures are consistent with the Artefact having been made by the Tiwanaku.
(ii) The Greek key feature 123 Dr Yates identified a second iconographic feature of the Artefact consisting of the use of a stepped band feature also known as a 'grecia' or 'Greek key' or 'meander' feature. At CB81, she said that the Greek key motif was 'a very common element of Bolivian Tiwanaku incised stonework, as well as on Tiwanaku ceramics'. She added in the concurrent session that she had not been asked to provide a commentary on the presence of this motif 'because it is such an accepted element of Tiwanaku ceramics that it's just - this is something that's there': T116.22-23. Mr Condori also mentioned this motif although he referred to it as a wide band with continuous, vertically intertwined lambda shapes. It is unnecessary to enter the turbid waters where roils the question of whether the Greek key is a stylised snake although Dr Yates perilously flirted with the notion at T115.38. Regardless, both Dr Yates and Mr Condori thought the Greek key a typical Tiwanaku motif. 124 I did not apprehend Dr Young-Sánchez to deny that the Greek key feature was found in Tiwanaku art and she wisely avoided its anguine implications. But even so it was still put to Dr Yates that she was unable to produce a single example of the Greek key feature in Tiwanaku art. Since she had never been asked to do so before the moment she was asked that question during the concurrent session, her inability to proffer such an example whilst in the midst of her questioning is not something which undermines this aspect of her evidence. More may this be so when the questioning was not accompanied by any corresponding evidence from Dr Young-Sánchez to make good such a proposition. 125 The same observation may be made about a similar line of questioning through which Dr Vranich was cantered. However, at this point it is necessary to deal with a matter arising from the cross-examination of Dr Vranich. Dr Vranich was cross-examined about the visual similarities between three of the Artefact's iconographic elements and those of other Tiwanaku objects. The cross-examiner was seeking to have Dr Vranich concede that the three elements exhibited by the Artefact were different. He was shown an image of part of the Artefact from a report prepared by a Mr Medina which was part of the materials provided to Dr Vranich for the purposes of his first report. The image is in the top right-hand corner of the set of images on CB367: 126 The apparent title to the set of images on this page is 'Figure of Head with Big Deer Nose', however, closer reading reveals that the relevant heading actually precedes the images on the previous page and is 'Segmented Rectangle Type Top Belt'. Beneath that Mr Medina explains that: 'The Ponce stela at Tiwanaku and many vessels and portraits of kerus and have a segmented rectangular band that are also present on the vessel'. There are four images on CB367. The one in the top right-hand corner is, as I have said, a close up of the Artefact and shows its upper band with rectangles. The other three images are of other Tiwanaku objects showing various bands with rectangles. 127 The cross-examiner put to Dr Vranich that the Artefact as depicted at CB367 (i.e. the picture in the top right portion) had three iconographic elements. The three elements were: (a) a rectangular band at the top where the rectangles were not separated from each other; (b) in the middle, stylised bird head motifs; and (c) at the bottom, a geometric recurring key design (also referred to as the recurring Greek key motif). This exchange then occurred at T116.30-117.10: MR LANCASTER: All right. So, in the closeup image of the vessel on page 367 of the court book, it shows three - I want to suggest to you, three design elements: a rectangular band at the top where the rectangles are not separated from each other by segments; in the middle of the image, a large recurring bird head motif; and at the bottom, a Greek - recurring Greek key design, as it's being called, in a rectangular form. And I want to suggest to you that nothing in any image that you've brought forward in your evidence, or that you've relied on in Mr Medina's report, shows any known Tiwanaku capital excavated object that has any of those design features. DR VRANICH: Okay. Thank you for repeating the question. The - I'm going to go a little bit with what Dr Yates say. I really wasn't - the amount of objects that have symbolism on it is extensive. I could probably sit down for a week and find things that I could compare this to. I haven't prepared that, because there is an extensive literature. My impression was, when I looked at this, I go, this doesn't fall outside of anything that I would radically say, "Wow, this is completely and utterly wrong." So, if you would like me to go and look for things, I could, but that was the level of the impression I had when I looked at this. MR LANCASTER: Do you accept the proposition that I put to you, though, about the images brought forward by you or Mr Medina? DR VRANICH: Let's see. At the moment - so, I am - I don't believe I brought any images forward in my report. And Mr Medina here, he has this - these three images, one from a statue, another one is a qiru from - from the lake, so it's not from Tiwanaku. And the one below, I believe is from the Gateway of the Sun. So that's another stone sculpture. And these have elements that appear to be - that have similarities with the - with our stone qiru in question, but they are not exact representations. 128 The question was whether any of these three features could be found in other Tiwanaku objects, including items depicted in Mr Medina's report. Although the question was framed broadly, it was asked in the context of CB367, the only page to which Dr Vranich was directed for the purposes of this question. This explains why Dr Vranich gave his response only by reference to the three other images provided by Mr Medina at CB367. 129 The Applicant submitted at ACS [60(c)] that Dr Vranich's independence and credibility was undermined by the fact he continued to insist that there were visual similarities between these three features and images in Mr Medina's report even though such visual similarities were objectively not present, and in circumstances where Dr Vranich acknowledged that the images were 'not exact representations'. At ACS [110]-[111], the Applicant further criticised Dr Vranich for not explaining the perceived differences between these three features and the examples provided by Mr Medina. I do not accept this criticism. 130 First, like Dr Yates, Dr Vranich was not on notice about this line of inquiry and had been given no opportunity to review Mr Medina's report in this context before being asked this question. Had he been given that opportunity, or if the cross-examiner had drawn the relevant examples to his attention as I think would have been fair, only then would it have been appropriate to expect Dr Vranich to have addressed the subtle perceived differences sought to be teased out by the Applicant. As it happens, Dr Vranich was not taken to Mr Medina's evidence about the Greek key feature on a Tiwanaku object at CB369 (a matter to which Dr Yates was not taken either). Further, the page the cross-examiner was asking about - CB367 - deals with the prevalence of segmented rectangle motifs on Tiwanaku objects and shows three other examples of a band with rectangles. The difference between those bands and the band on the Artefact lies in the segmented nature of those bands. Even so, I think it was apt to cause unnecessary confusion not to draw this directly to Dr Vranich's attention and instead to embed this observation within an omnibus inquiry while expecting a specific response. It has certainly taken up quite a considerable amount of my time getting to the bottom of this. The course taken has also deprived the Court of Dr Vranich's opinion on whether the segmentation is of any significance. 131 Dr Vranich's response, about which the Applicant complains, is understandably pitched at a general level. He observed that there do exist similarities between the images at CB367 and the Artefact, while acknowledging that they are not exactly the same. Given the way the questioning proceeded, I do not think Dr Vranich can be criticised for this. 132 It is convenient at this point to deal with the Applicant's submission at ACS [110(a)] that the images at CB367 provided by Mr Medina, purportedly examples of the 'Head with Big Deer Nose', were adopted by Dr Vranich as sound iconographic comparators despite these images objectively looking nothing like the central figural motif of the Artefact. But, of course, they would not because the 'Head with Big Deer Nose' heading refers to images on the following page of Mr Medina's report. This submission therefore goes nowhere. 133 There is further significance to be gleaned from Dr Vranich's response. His initial response in the face of this perhaps not entirely fair questioning was to say that he had not really had an opportunity to search the literature to find examples of the three motifs but his impression was that the motifs did not indicate to him that the object was not Tiwanaku. I accept that he had not had an opportunity to check the literature. I also accept his evidence that the three motifs did not indicate to him that the Artefact was not Tiwanaku. This is an important point. Dr Young-Sánchez did not suggest that any of the three motifs indicated that the Artefact had been made by any other particular civilisation. Likewise, the Applicant itself did not submit that I should find that the motifs were distinctive of some other Andean civilisation. 134 Further, as I have observed earlier, Dr Young-Sánchez had not dealt with the band containing the rectangles or the Greek key feature in her report and it was unreasonable to expect Dr Vranich, without notice, to pluck an artefact out of the air in the fashion it was suggested that he should. 135 In its written submissions the Applicant returned to the photographs in Mr Medina's report. The submission was at ACS [107(b)] and had two elements. The first was that a comparison between the Greek key feature on the Artefact and the images provided by Mr Medina at CB367 failed to reveal any similarity. However, as I have explained, this is unsurprising because the heading to the images on CB367 is on the preceding page and identifies CB367 as being related to segmented bands containing rectangles rather than the Greek key feature. Depictions of the 'Head with Big Deer Nose' appear on the following page and the analysis of the Greek key feature on the page after that. 136 The second element in the submission was that the Greek key feature was found in cultural artefacts which could be found outside Bolivia. This submission was unaccompanied by a reference to the evidence which supported it. The Greek key feature was also referred to as a volute or a meander. I have been unable to find any evidence in the transcript or the Court Book that the feature was used outside Bolivia. As such, I do not accept this submission. 137 Returning to the iconographic debate about the Greek key feature, I find that it is typical of Tiwanaku art.
(iii) The upper band with segmented rectangles 138 In addition to the details identified by Dr Yates, Mr Condori described some other features on the surface of the Artefact which he thought identified it as being Tiwanaku. The first of these was what he described as an upper band showing 'segmented rectangles going from the top edge to the head of the feline, all around the vessel'. As I have just discussed, this was the subject matter of the images at CB367. 139 Before plunging into the testimony about this, it is convenient to examine more closely the bands depicted above at CB367. The Artefact shows an upper band containing rectangles. The other three objects show rectangles within the band but the band itself is segmented and each rectangle is contained in an individual segment. As a matter of language I think that the band on the Artefact may be described as 'segmented' inasmuch as it contains segments consisting of rectangles. But minds may differ on this. As such I do not think that there is anything in the Applicant's submission that Mr Condori's evidence in his report that the top band showed segmented rectangles was not to his credit. It was not put to him, I might note, that the rectangles were not segmented. I also have some doubt as to whether the translation of Mr Condori's report from Spanish into English and his cross-examination through an interpreter allows one to be confident that the ambiguity in the English word 'segmented' was adequately conveyed in the process. 140 However, the denotation of the word 'segment' is not the real debate here. The real debate is that the three figures at CB367 have rectangles which are separated from each other by a line whereas the Artefact does not. Turning then to the other evidence: 141 In her report Dr Young-Sánchez did not mention the upper band or attribute significance to it one way or the other. Likewise, neither Dr Yates nor Dr Vranich mentioned the upper band in their reports. I have noted above a challenge was laid out to Dr Vranich to point to any Tiwanaku object having, inter alia, an unsegmented upper band with rectangles; that is, a band containing rectangles not separated from each other by a line. However, as I have already explained, the nature of this questioning meant that it did not yield much of value. During the concurrent session Dr Young-Sánchez appeared to accept that a segmented upper band was typical of Tiwanaku art although she denied that the upper band on the body of the Artefact was segmented: T109.24-32. I take Dr Young-Sánchez to be drawing attention to the absence of lines between the rectangles. 142 In any event, the evidence given by Mr Condori and Dr Young-Sánchez sustains respectively the propositions that an unsegmented band containing rectangles of the kind seen on the Artefact is typical of Tiwanaku art and that a band itself segmented is also typical. On the other hand, whatever one might call the upper band on the Artefact one cannot ignore Dr Young-Sánchez's evidence that it was not typical of Tiwanaku art because it was not segmented. Since I would accept that the upper band is on one view not segmented, I must conclude that the evidence of Mr Condori and Dr Young-Sánchez on this point is in conflict in substance if not in form. 143 Neither Mr Condori nor Dr Young-Sánchez were challenged on the question of whether the upper band was typical of Tiwanaku art. On the other hand, Dr Yates who had until the concurrent session steered clear of the implications of the design of the upper band, was challenged to accept that it was not to be found in any other Tiwanaku object: T114.11-14. Her answer was as follows: DR YATES: I would not characterise those as rising to the level of being unique. I think that all of the elements we absolutely see in other forms in Tiwanaku artworks and objects, and it's not like we are suddenly seeing somebody - a Christian cross in the middle of this, or something that is unique that's a shape that we don't see anywhere at Tiwanaku. I think that we're just seeing a point on the spectrum of what's possible within the types of motifs that absolutely exist within Tiwanaku objects. 144 So far as I can see, this is the universe of evidence on this topic. As with Dr Young-Sánchez's evidence about the figural motifs, I think one must be circumspect about discerning stylistic prohibitions from the available archaeological record. The fact that an unsegmented band containing rectangles has not yet been found at Tiwanaku does not necessarily imply that the use of such a band is not typical of Tiwanaku art particularly in light of Dr Young-Sánchez's evidence about the limited state of the archaeological record and Dr Yates's evidence about the possibility of variation within the canon. On the other hand, given the extensive excavations at San Pedro de Atacama and the Moquegua Valley, the lack of any artefacts containing such an unsegmented band is perhaps more persuasive. However, I am less persuaded by this where the manner in which this issue was raised effectively denied Dr Vranich and Dr Yates any opportunity to look for a band which was unsegmented. 145 The contest then is between Dr Young-Sánchez's evidence that the band on the Artefact is not typical because the rectangles are not separated in their own segments (which I would discount slightly to bring to account the uncertainties of what may be discovered in the future) and Mr Condori's evidence that the band is typical. On the basis of this evidence, I think it may be said that the band is distinctive of the Tiwanaku but it may be just as plausibly said that it is not. In that circumstance, whilst the respective evidence of Dr Young-Sánchez and Mr Condori would make reasonably open an inference in either direction, I am not affirmatively satisfied that the upper band is typical or not typical of the Tiwanaku. This entails that the Commonwealth has failed to prove that it is typical although I explicitly make no finding that it is not typical.
(iv) The significance of the protruding feline head and whether the Artefact is a depiction of a kero 146 This feature is, of course, the single most striking aspect of the Artefact. Although the certificate of authenticity provided by the Artemis Gallery says that the Artefact has a 'projecting jaguar effigy head', Dr Yates preferred to describe the head as feline since the exact species the maker intended could never be known. However, Dr Yates felt that the depiction of felines in stone sculpture was an important and distinctive element of Tiwanaku iconography. She instanced a number of examples of full figure anthropomorphised stone felines which had been located at Tiwanaku or other sites in Bolivia which are known as chachapumas. Here is a chachapuma: 147 Mr Condori also thought that the feline-shaped zoomorphic head protruding from the Artefact's hyperboloid shape was characteristic of Tiwanaku culture. In particular he thought that the mouth, nose, eyes and ears were typical examples of the culture. 148 I accept that felines are common in the iconography of the Tiwanaku. However, I also accept the evidence Dr Young-Sánchez gave during the concurrent session that they are also 'a very common subject matter in many, many Andean civilisations' which could be found 'all the way up into Columbia and throughout Peru and Ecuador, and down into Chile as well': T95.40-43. 149 Returning to the significance of the protruding feline head, it is next necessary to note that both Dr Yates and Dr Young-Sánchez gave evidence that a feline head protruding from a square base was a feature which appeared in Tiwanaku culture. Both gave evidence that such felines could be found on a common ceramic vessel known as an incensario which was used for burning incense. Dr Yates provided a number of examples of incensarios each of which clearly shows a feline head protruding from a square base quite similar to the feline head protruding from the body of the Artefact. Dr Yates also said that the incensario had a similar flared shape to the kero. 150 Dr Young-Sánchez thought that it was not an incensario because if it were then the protruding feline head and square base would be located on the rim of the vessel which they were not. She also thought that it was not a kero because if it were then the protruding feline head would be much smaller and the square base would be painted or incised directly onto the body of the vessel rather than extending out of it. It is implicit in this evidence that a kero can have a protruding feline head but not of the size evident in the Artefact. 151 By contrast, the view of Mr Condori, Dr Yates and Dr Vranich was that it was a kero (more precisely a depiction of a kero). I do not agree with Dr Vranich's evidence at T86.38 that the Artefact looked like 'your typical Tiwanaku ceramic or wooden vessel'. The large protruding feline head negates this possibility although, apart from the protruding feline head, I do agree that it looks precisely like a Tiwanaku ritual kero (as I have indicated above). 152 None of the witnesses suggested that the Artefact was an incensario and I am confident that it is not. 153 I have already noted that I do not accept that Dr Young-Sánchez's evidence that the Artefact was too large and impractical to be used as a drinking vessel negates the possibility that it is a sculptural depiction of a kero. I do accept that it does demonstrate that the Artefact is not an actual drinking vessel which I do not really think that any of the witnesses disputed. 154 Understood in that light, it was Dr Yates's opinion that the Artefact was a unique kero for, with one exception, she was unaware of another stone kero with a feline head projecting from it. The single exception was another stone kero sold at the same time as the Artefact by the same vendor and having the same provenance documentation. Since the nature of that object has not been the subject of debate it must be put aside as an example of a stone kero made by the Tiwanaku. 155 Dr Yates's opinion that the Artefact was unique was similar to evidence given by Dr Vranich that the Artefact was more elaborate than any kero of which he was aware. It was, in his view, a technological and artistic achievement. 156 Against this evidence of Dr Yates must then be weighed the evidence of Dr Young-Sánchez that keros can have protruding feline heads (albeit not as large as is the case with the Artefact) with a painted or incised base (rather than the stone square which frames the head on the Artefact). An example of a kero with a protruding head appears amongst the examples of Tiwanaku ritual keros set out above at [83]. In view of the controversy between Dr Yates, Dr Young-Sánchez and Mr Condori about the nature of the animal head motif on the side of the Artefact I hesitate to say that the head in question is the head of a bird; still that is my best guess. 157 I would resolve the inconsistency between Dr Yates and Dr Young-Sánchez by concluding that there are no known examples of a stone kero with a protruding feline head but that keros with smaller protruding feline heads are not atypical in ceramic keros. I do not regard Dr Young-Sánchez's evidence as throwing much light on the size of feline heads on sculptural depictions of keros in stone. I accept her evidence as far as it goes on how large feline heads are on ceramic keros but this is not a ceramic kero. 158 Mention should also be made of the fact that the protruding feline head is slightly askew or 'canted' from the horizontal. This was one of the features of the Artefact which initially persuaded Dr Young-Sánchez that it was a fake or a pastiche. The Applicant nevertheless relied on her evidence to demonstrate that even if it were not a fake or a pastiche the fact that the head was not quite straight implied that it was not Tiwanaku. Dr Young-Sánchez noted that Tiwanaku stone sculptors were 'renowned for their precision and their skill'. The Applicant's submission assumes that the fact that the head is not straight is unintentional and results from poor craftsmanship. Nothing about the Artefact persuades me that it is an example of poor craftsmanship. Consequently, I do not think that the fact that the head is askew is unintentional and it follows that I do not accept the submission that this shows that the Artefact is not Tiwanaku. 159 The choice is therefore between concluding that the Artefact is a unique example of a stone depiction of a kero with a feline head projected from a square base or that it is not a depiction of a kero at all. Once one accepts that it is not an incensario it is difficult to understand what it could possibly be apart from a depiction of a drinking vessel. Dr Young-Sánchez's objection that it is too heavy and too large to be a drinking vessel does not accommodate the possibility that it is a depiction of a kero. Once that possibility is added to the picture, Dr Young-Sánchez's evidence did not go on to suggest that the object depicted in the Artefact was something else, for example, a mortar. 160 On the other hand, the evidence of Dr Yates requires the conclusion that the Artefact is an unprecedented depiction of a kero in that it has a feline head protruding from its side framed by a square base. Further, the evidence of Dr Young-Sánchez allows one to add to its atypical nature the fact that the feline head is much larger than is the case with any known example of a functional ceramic kero. 161 One further aspect of the evidence should be noted. Mr Condori gave evidence under re-examination that the modelling of the feline head corresponded with the style and finishing of the Tiwanaku at Tiwanaku: T50.15-20. Attached to Mr Condori's report at CB65-68 were a series of images the captions to which suggest that they depict objects from Tiwanaku. Some of these images include feline heads. Beyond a statement at CB68 (translated at CB40) that 'the two sculptures and the seized artifact bear the same characteristic feline', his evidence did not directly reference these images in the context of the modelling of the feline head. However, he also gave evidence at T44.33-45.28 about the location of the nostrils on the Artefact's protruding feline head. In that context he did refer to the images at CB65 and said 'we can see the identical morphology to the qiro of interest, where there are identical characteristics in terms of the ear, the eyes, the nose and the teeth'. Although Mr Condori did not explain in his report why the modelling of the feline head corresponded with Tiwanaku style and finishing at Tiwanaku I would infer it is because of his evidence at T44.33-45.28 and CB65-68. I accept this evidence in part. As I will shortly explain, I am unable to form a view on whether the crossed canines of the feline head, the number of its teeth or the position of its nostrils is typical (or atypical) of the Tiwanaku. However, the feline head has other features (such as ears and eyes) and in relation to those features I accept the evidence of Mr Condori which I did not apprehend to be disputed. 162 It is reasonably open to infer that the Artefact is a depiction of a kero. I am affirmatively persuaded that it is and I draw that inference. I also find that the Artefact is unprecedented in two ways: (a) there are no other known examples of a stone kero with a protruding feline head; and (b) the protruding feline head is larger than appears on ceramic keros. Ultimately, both Dr Young-Sánchez and Dr Yates accepted that the fact that the Artefact appeared in some way to be a kero put together with an incensario was without precedent. On the other hand, subject to the question of its teeth and the location of its snout, I also find that the feline head in style and finishing is characteristic of the Tiwanaku style at Tiwanaku. 163 The precise function of the Artefact remains unknown as the Applicant correctly submitted at ACS [90] although, as I have said, I am satisfied that it is ritual in nature. But I do not think that this observation amounts to very much. It is a depiction of a kero with some features of an incensario. Dr Vranich thought it a venerated object but I have already explained why I do not accept this, at least for the purposes of a civil trial. Dr Yates thought that it might have something to do with large stone beings who were probably engaged in some way with eating and drinking. I agree with the Applicant that one can but speculate about what the Tiwanaku did with the Artefact. However, this inability on the Commonwealth's part to identify the precise ritual function that the Artefact served does not appear to me to impact on determining whether the Artefact is Tiwanaku in origin. No doubt, if its function were known then this would make a determination of what it actually is more straightforward.
(v) The crossed canines of the feline and the number of its front teeth 164 Dr Yates gave evidence that the canines of the feline head were crossed which does indeed appear to be the case. Although in her report she expressed the view that Tiwanaku depictions of felines typically display crossed canines she also gave evidence during the concurrent session that felines with crossed canines were 'something that we see across Andean cultures across thousands of years' (T96.23) and that 'crossed canines and feline imagery is not the hallmark of Tiwanaku': T96.25-26. What I take from this evidence is that the presence of a feline head with crossed canines is not inconsistent with the Artefact having been made by the Tiwanaku although it is also consistent with the Artefact having been made by other Andean civilisations. That said, there was no evidence which suggested the Artefact as a whole was typical of any other identified Andean civilisation. Dr Young-Sánchez thought the Artefact atypical of the Tiwanaku in certain ways but she did not say that she thought it was typical of the Inca, Aztec or Wari civilisations for example. 165 On the other hand, Dr Young-Sánchez thought that the number of front teeth that the feline had was unnaturally large which she regarded as anomalous. I agree that the feline in question has a larger number of front teeth than any non-fictional feline I have encountered. On the other hand, fictional depictions of cats often include an unusually large number of front teeth, e.g., the Cheshire Cat. In her supplementary report Dr Yates did not engage with Dr Young-Sánchez on the number of front teeth which the feline had and this topic was not the subject of debate during the concurrent session. Dr Yates did accept that the Artefact displayed an array of iconographic features which had not appeared in association with each other in the archaeological record and it may be assumed that she included in that observation the Artefact's dental plenitude. This combination of features was, in her view, what made it so unique and important. 166 On the question of the number of front teeth on the feline, I am not moved especially in either direction. Dr Yates's report includes a depiction of a highly stylised feline which, on any view, exhibits an unusual array of front teeth although it is difficult to be certain that it does so in the same numbers as the feline head on the Artefact. This makes me think that perhaps not too much store ought to be placed on Dr Young-Sánchez's evidence that the number of front teeth is anomalous. I do not find either that the number of teeth is distinctive of the Tiwanaku culture or that it is not. The evidence does not persuade me in either direction.
(vi) The position of the feline's nostrils in relation to its mouth 167 One of the highlights of the trial was the concurrent evidence given about the location of the feline's nostrils which was certainly a pleasant break from the usual fare of the judges of this Court. Dr Young-Sánchez thought that the location of the feline figure's nostrils and mouth were atypical because in Tiwanaku culture feline heads have nostrils that sit directly above and flush with the mouth. However, in the case of the Artefact the feline's nose is set well back. In the concurrent evidence session she said that there were hundreds of feline snouts in the archaeological record but none of them looked like the Artefact, at least not in the published examples she had consulted: T106.27-29. 168 Dr Yates was challenged under cross-examination to identify any example of a Tiwanaku feline on an object excavated from Tiwanaku which had its nostrils located back from, rather than flush with, its mouth. Resort to the chachapumas set out above did not avail her since as she correctly observed 'their face has been bashed off': T105.38-39. The position of the nostrils on the chachapumas is therefore lost to history. She did say that she had seen reconstructions where the nostrils were set back but otherwise did not rise to the cross-examiner's challenge. Resort by me to the various felines in the Court Book has not brought to light one with nostrils which are other than flush. 169 Dr Yates's interrogation on the location of the feline's nostrils took place on the first day of the concurrent session after which there was a break of several days before the second. I have already adverted above to the fact that Dr Yates took advantage of this hiatus to take to Twitter, as it then was, in search of a Tiwanaku feline whose nostrils were situated back from its mouth. I have rejected the submission made by the Applicant above that by so doing she was seeking to 'crowd-source' her expertise but it will be apparent from her examination on the first day why Dr Yates had gone in search of such a feline. 170 Dr Vranich also underwent further interrogation on the location of the nostrils at T106.1-18: MR LANCASTER: Dr Vranich, are you likewise not aware of one other example of a feline head in a Tiwanaku-style object where the nostrils are set back from the snout? DR VRANICH: I have to admit, I've really never concentrated that much on feline snouts while I was there. So at this point, unfortunately, the one person that would be best able to say that is not around with us anymore. Let's see. There is only that one example, and the snout is broken. And then after that, we have feline heads in other media, such as ceramics, and then represented in other ways. Would you like a more precise answer, then? MR LANCASTER: No. It - but perhaps you could answer broadly, even in ceramics, are you aware of even one example of a ceramic feline head with the nostrils set back from the front of the snout that is, in your view, comfortably attributed to Tiwanaku culture? DR VRANICH: I - I would have to review. There are thousands of them. I can't think of any offhand right now. 171 The Applicant submits that Dr Vranich had failed to answer this directly or responsively. Given the obscurity of the topic - namely, how far back the nostrils on a chachapuma might be located - I am not at all surprised at the answer he gave. Indeed, I would have been surprised and a little incredulous if Dr Vranich had asserted that he knew, without any review of the literature, that there were other examples of chachapumas with the nostrils set back from the snout. 172 Mr Condori too was drawn into the snout debate. It was put to him that the setting back of the nostrils showed that the Artefact was not made by the Tiwanaku: T45.20-23. This he denied, saying instead that the Artefact was 'within the range and canon of production and manufacture of Tiwanaku art'. 173 It is open to infer from this evidence that it is not typical of Tiwanaku sculpture to depict a feline with its nostrils set back from its mouth. In favour of drawing the inference is the evidence of Dr Young-Sánchez. It is also open to draw the inference that there is nothing atypical about the Artefact's snout. In favour of drawing that inference is the evidence of Mr Condori, the evidence of Dr Young-Sánchez concerning the limited nature of the archaeological record and the somewhat pallid evidence of Dr Yates that she had seen reconstructions where the nostrils were set back. To that one might add Dr Yates's general evidence on the possibility of variation within the canon. 174 I am not confident that I can reach a conclusion on this one way or the other. I am not persuaded that the location of the nostrils is typical or that it is not typical. The question must remain open.
(vii) Conclusion - made by the Tiwanaku? 175 Having surveyed the evidence about the appearance of the Artefact, it is then necessary to determine whether it was in fact made by the Tiwanaku. Dr Yates and Dr Vranich were sure that the Artefact was an example of the Tiwanaku culture and came from Tiwanaku or nearby to Tiwanaku. 176 By contrast Dr Young-Sánchez did not attempt to say who had made the Artefact but concentrated instead on those of its features which she regarded as atypical of the Tiwanaku culture. During the course of the exchange of the parties' evidence, Dr Young-Sánchez's position underwent considerable development. At the time she prepared her initial report, the Artefact had not been subject to x-ray examination. Based on a close inspection of various photographs Dr Young-Sánchez concluded that the Artefact was a fake or pastiche made in modern times. She accepted that it had been manufactured 'by someone generally familiar with Tiwanaku art and artifacts but lacking any real understanding of Tiwanaku vessel forms and functions, religious imagery, or stylistic conventions'. It was her opinion that the Artefact was 'either a reproduction/fake, or a pastiche composed of partly authentic elements that have been reassembled and augmented to create an object that is substantially inauthentic'. Indeed, it was her opinion that the Artefact deviated from the canons of Tiwanaku art in ways so great that she thought only scientific documentation of its excavation from an undisturbed archaeological site could establish its antiquity. 177 Thus it was her evidence that the Artefact had been assembled from at least two pieces of basalt with the protruding feline head being added to the body of the vessel at a later time which explained why it was slightly askew. She allowed that there were perhaps parts of the Artefact which were ancient, possibly fragments of a simply shaped vessel such as a mortar which had been adhered together. It was to this that the newly carved feline head was affixed and the bands of decoration were incised. 178 The opinion could not at all survive Ms McHugh's evidence that x-ray examination of the Artefact showed that it had been made from a single piece of basalt or Professor Mavrogenes's uncontested evidence that the patina on the Artefact showed that it was at least hundreds of years old. Dr Young-Sánchez's evidence that the Artefact was a modern fake or pastiche cannot therefore be correct which, to be fair to Dr Young-Sánchez, she basically accepted once the evidence of Professor Mavrogenes and Ms McHugh became available. Dr Young-Sánchez did not, however, wholly abandon her theory for, during the concurrent session, she returned to it at T117.39-118.2: DR YOUNG-SANCHEZ: Well, my strongest interpretation is that it probably is from the 20th century. I - and if the head had been separable, then it would be sort of a smoking gun that that was clearly the case. It's not. It's made in one piece. And so, you know, I - it's not incontrovertible that this piece is made in the 20th century, but I don't believe it was made by someone who was from - who was part of the classic Tiwanaku culture. To me, this is somebody who has a superficial familiarity with the elements of Tiwanaku art, but couldn't put it together, couldn't get the details right, couldn't get the proportions correct, couldn't assemble all of those elements into something that makes sense. And so to me, this is someone who is separated in time or space by some degree from classic Tiwanaku culture who made this. 179 However, this view is not available given the scientific evidence and it would have been better, I think, if Dr Young-Sánchez had abandoned it altogether. Ultimately, I do not think that she really persisted with it but its reappearance during the concurrent session leaves a slight question mark over her evidence about the iconography and morphology of the Artefact. In any event, by the end of the concurrent session Dr Young-Sánchez's evidence about whether the Artefact had been made by the Tiwanaku was dependent for its efficacy only on her views about the iconography and morphology of the Tiwanaku. Although at one point Dr Young-Sánchez said that the Artefact bore 'aberrant features' (at T111.15) I consider that such a conclusion does not sufficiently account for stylistic variation at Tiwanaku and places too much weight on the admittedly limited archaeological record as a negative criterion of exclusion. As I have already noted Dr Young-Sánchez did not attempt to say that the Artefact contained iconographic elements which were distinctive of some other culture to the exclusion of the Tiwanaku. She did not say, for example, that the bird heads she identified were distinctive of the Inca or the Aztec. 180 To my mind, Dr Young-Sánchez's evidence leaves hanging unanswered the question of who made the Artefact. This is not a criticism and the Applicant was most assuredly not bound to attempt any proof of this matter since it did not bear the burden of proof. The Applicant was permitted to play a spoiling game and to utilise the evidence of Dr Young-Sánchez to point out the problems with the Commonwealth's case. 181 Even so, I do not think that Dr Young-Sánchez's evidence at T85.29-30 that if the Artefact were an authentic object, then it was more likely to have been made at Tiwanaku than anywhere else assists the Commonwealth. The Applicant submitted that this was a concession based on the assumption that the Artefact was, in fact, Tiwanaku which I accept and which is borne out by the fact that Dr Young-Sánchez immediately qualified this statement by adding that it was not outside 'the realm of possibility' that the Artefact had been manufactured elsewhere or manufactured at Tiwanaku and then moved elsewhere. 182 Having dealt with the evidence, it is useful to begin with two facts which cannot be disputed. The Artefact is at least hundreds of years old and the images which have been incised on it were done with a percussive tool of non-modern operation. I would infer from this that it was made by someone expert in working in basalt to a similar level of skill to the Tiwanaku. Since it was made at least hundreds of years ago it is useful to ask who had skills of that kind. 183 Dr Yates and Dr Vranich gave evidence (at T83-84) that modern attempts to recreate this form of stonework using ancient methods had been unsuccessful which I accept. It was not suggested by the Applicant that it should be found that the Artefact had been manufactured by Europeans hundreds of years ago and that hypothesis may be put aside. 184 All that remains therefore are two competing hypotheses: first, that the Artefact was manufactured by the Tiwanaku; and second, that it was manufactured by some other unidentified civilisation. These hypotheses should be tested against the facts as found about the Artefact. 185 The following matters suggest that the Artefact is an example of the Tiwanaku culture: (a) the Greek key feature is typical of the Tiwanaku culture; (b) the highly stylised figures on the body of the Artefact, whatever they are, are consistent with the Artefact having been made by the Tiwanaku; and (c) the style and finishing of the feline head (apart from its teeth and the position of its snout), viewed in isolation, is typical of the Tiwanaku at Tiwanaku. 186 The following matters suggest the Artefact is atypical of the Tiwanaku culture as it is presently understood: (d) the Artefact is a stone kero with a projected feline head no other example of which is known; and (e) the projecting feline head is larger than is usual with ceramic keros. 187 The following matters are indeterminate and I am unable to make a finding at the civil standard one way or the other as to whether they are typical or atypical: (f) the upper band containing rectangles; (g) the crossed canines of the feline; (h) the number of the feline's front teeth; and (i) the setting back of the nostrils from the mouth of the feline. 188 Neither of the atypical matters in (d)-(e) were said to be suggestive of some other Andean civilisation. If the Artefact was manufactured by another civilisation the question would then arise as to why it has upon it the typical Greek key motif characteristic of the Tiwanaku culture in (a). Dr Young-Sánchez's evidence provides a possible answer: the person who manufactured the Artefact was seeking to effect the style of the Tiwanaku culture although was somewhat inexpert in doing so. The Greek key feature and the stylised animal head figures on the body of the vessel show that the person was familiar with the Tiwanaku culture. But despite this slight level of familiarity, under this theory the person: (i) had not realised that the Tiwanaku would not make a basalt kero with a protruding feline head; (ii) would have realised that if there were to be a head, it needed to be smaller; and (iii) would have painted or incised any frame for the feline head on the vessel rather than making it a physical mount for the feline head. On the other hand, one might view these matters as showing only that the Artefact was Tiwanaku in origin and that the supposed errors of style described by Dr Young-Sánchez are in fact merely stylistic variations within the culture. 189 This last observation can be put more precisely. The established facts reveal that the Artefact has features which are distinctive of the Tiwanaku culture but also features which appear to involve elements which do not appear in the current archaeological record. Fully stated the two competing hypotheses are only these: (a) the Artefact was made by the Tiwanaku and the variations are just ordinary variations of style within that culture; or (b) the Artefact was made by a person in a different civilisation who was attempting inexpertly to give the Artefact the appearance of Tiwanaku culture. On this latter hypothesis, the extant variations are to be explained on the basis of the creator's lack of expertise. 190 Both hypotheses fit the findings I have made about the Artefact. 191 In my view, the first hypothesis is more likely than the second. There are two reasons for this. First, there is no doubt the manufacture of the Artefact involved a great deal of work as Dr Vranich explained in his report. The Tiwanaku did not use iron. Thus, if it were made by the Tiwanaku, its manufacture would have involved either hand grinding with another stone or the use of a piece of metal such as bronze arsenic which would have required reforging after a few blows. There was no evidence presented about the techniques used by other nearby civilisations to fashion stone objects hundreds of years ago, but the evidence of Ms McHugh demonstrates that the Artefact was made with non-modern, non-mechanical hand tools. The incisions were made by the percussive action of a sharpened tool. On any view, the amount of work involved in the manufacture of the Artefact was substantial. 192 The devotion of significant time and effort to the manufacture of the Artefact signifies that whoever made it thought the effort justified for the ritual purpose I am satisfied the Artefact had. I think it unlikely that a person in another civilisation would deploy that kind of effort to produce an object having the cultural features of a different civilisation. And, as I have already observed, there is no evidence that that Aztec, Inca or Wari engaged in reproductions of Tiwanaku art although I do not discount that Wari imagery is similar to Tiwanaku imagery (I return to Wari imagery later in these reasons). 193 Secondly, the limited archaeological record which is available makes the fact of the variations less impressive than it might otherwise be in demonstrating a non-Tiwanaku origin. If the Artefact were apparently Roman then the extensive archaeological record of Roman society might allow one to be much more definitive about the significance of the variations but, as Dr Young-Sánchez correctly observed, there are relatively few people working in the field of Tiwanaku iconography and the documentation of Tiwanaku is far from complete. 194 Dr Yates suggested that Ockham's razor also indicated that the first hypothesis should be preferred. I do not consider that it would be appropriate to apply the parsimony principle to theories which seek to explain why things are presently as they are; here, why the Artefact exhibits variations from the Tiwanaku canon. For example, the fact that I was late to work today may be most simply explained by the theory that I slept in whereas the theory that I was delayed by unexpected roadworks which caused me to divert to a different route where I encountered a traffic jam is much more elaborate. I do not think Ockham's razor could be correctly applied to the question of why I was late to work to conclude that it is more likely that I slept in. In a more serious vein, the theory that the French Revolution was caused by the excesses of Louis XVI and his wife is unlikely to be correct merely because it is simpler than other theories such as the complex interplay between the Estates system, enlightenment thinking and the American Revolution. 195 Thus whilst the first hypothesis is simpler than the second I do not think that it makes it historically more likely. Accordingly, I specifically exclude the superior simplicity of the first hypothesis from the analysis. 196 Since there are only two hypotheses, the conclusion that one is more likely than the other entails also that it is also more likely than not (for the reasons I have given above). I therefore conclude that the first hypothesis is established at the civil standard. For the purposes of a civil trial, I am affirmatively persuaded that the Artefact was made by the Tiwanaku. Put shortly, it has typical Tiwanaku features and there are no other plausible candidates for the culture that made it once it is accepted that it is at least hundreds of years old.
The Commonwealth's post-1906 removal hypotheses 213 The Commonwealth sought to prove that the Artefact was exported from Bolivia after 1906 by putting forward two alternate hypotheses which it says between them are more likely than not. These are that: (a) it was amongst the objects excavated by Dr Casanova in Tiwanaku in 1934; or (b) it was looted by persons in or around 1950. 214 The fact that the Artefact was removed from Tiwanaku makes it difficult to determine the exact date of its removal for, as Dr Yates observed, the act of removal obscures its own circumstances. Dr Yates, Dr Vranich and Dr Young-Sánchez all agreed at T102-103 that the location where an object is found is a very important piece of information; indeed, Dr Yates described it as the core of archaeology: T102.37. Here this singular piece of information is the piece which is missing. The deficit afflicts both of the central aspects of the case. It affects the question of whether the Artefact was made by the Tiwanaku (which would be clear if it was known that it had been excavated from Tiwanaku) and it afflicts the question of when the Artefact was excavated which would likewise be known if the circumstances of its excavation were available. 215 In the case of the iconography and morphology of the Artefact I have not felt that this missing piece of information was an insurmountable impediment in determining whether the Artefact was made by the Tiwanaku. However, the Applicant submitted that it was also an impediment to determining when the Artefact was excavated which necessarily reduced the various opinions proffered to mere speculation: ACS [71]-[72]. As will be seen, I do not accept that the evidence about when it was originally excavated is so meagre that a conclusion about it cannot properly be drawn. The balance of this section will hopefully explain why. 216 Dr Yates did not think that the provenance documents provided with the Artefact allowed one to draw the conclusion that it had been removed prior to 1906. I accept this. All that may be inferred from the provenance documents is that it was acquired by Mr Osona in the 1950s in Buenos Aires from somebody else possibly at the Antigua Casa Pardo. 217 Dr Yates's opinion was that prior to the late 1940s interest in Bolivian archaeological objects was limited to Bolivian and international archaeological experts and a handful of local private collectors. Dr Yates has a particular expertise on the topic of the illegal flow of archaeological objects out of Bolivia which she researched for the purposes of her doctoral dissertation and her subsequent publications. She thought that a relatively small number of objects had left Bolivia prior to that time. These exportations were carried out by foreign archaeologists, European diplomats and a select group of Bolivian nationals that had connections abroad. Most of these objects went almost directly into museums and were well known to archaeologists. At this time, there was insufficient demand for Bolivian archaeological objects to sustain a thriving trade beyond Bolivia's borders. Even within Bolivia the trade could not be described as thriving. To similar, although not identical effect, Dr Vranich thought that prior to 1906 a series of well-funded scholars took the route from Argentina to Bolivia with the intention of purchasing choice pieces for collections. 218 Dr Yates felt that this situation had changed when the art market caught up with the interest some modern artists had expressed in non-European artworks. Chief amongst these were Picasso and Moore who derived inspiration from 'primitive' art. Commencing in the late 1940s, but reaching its peak in the 1950s and 1960s, there was a demand for primitive artworks generally and, more specifically, for pre-Columbian works. This included Tiwanaku objects. The increased demand for such objects created the climate for looting which Dr Yates says began in the late 1940s. That Dr Yates attributed the wide scale looting of pre-Columbian cultural objects which occurred in the middle of the 20th century to artists such as Picasso is certainly an illustration of how ostensibly harmless aesthetic impulses can have unintended negative consequences on a large scale. 219 Subsequent to the looting which began in the culturally disastrous wake of Picasso, steps were taken by Bolivian authorities to staunch the outflow of its cultural patrimony. This was unlike Peru, Ecuador and Columbia which have been less firm in the steps they have taken to prevent the exportation of their cultural heritage. In Dr Yates's view, the late 1940s and 1950s represented a brief window in which the export of Bolivian archaeological objects was feasible and rife. 220 It was thus Dr Yates's view that whilst there were many Tiwanaku objects which were removed prior to 1906 the provenance of these objects was always known since the persons who had removed them had no reason to conceal their removal. This was consistent with Dr Vranich's evidence that he had examined the contents of collections of known Tiwanaku objects assembled prior to 1906 and found no trace of the Artefact. He felt that such a remarkable piece would have been documented had it been removed before 1906. Dr Yates went somewhat further and said that she knew of no Tiwanaku object which had been exported prior to 1906 which did not have an established provenance. 221 Thus both Dr Yates and Dr Vranich were united in their view that the lack of provenance for the Artefact was a strong indicator that it had been removed from Bolivia after 1906. They differed however on the question of when during the 20th century it had been removed. Dr Yates thought that the brief window between the late 1940s and 1950s when the illegal trade in Bolivian artefacts flourished was the most likely period during which the Artefact had been removed from Bolivia. Within this window, she concluded that the most likely date of export was in or around 1950. 222 Dr Vranich, on the other hand, thought that there had been a black market for objects like the Artefact between 1910 and 1940 and for that reason placed its removal in that range. Here Dr Yates and Dr Vranich to an extent differed because Dr Yates did not think that there was much interest in Tiwanaku objects before the late 1940s beyond the ranks of archaeological experts and a handful of local private collectors. On the question of the market dynamics of the trade in Tiwanaku objects I would generally prefer the evidence of Dr Yates to that of Dr Vranich since it is her area of particular expertise. On the other hand, on the history of actual excavations at Tiwanaku by real archaeologists I was impressed by the evidence of Dr Vranich who seemed to have spent more time at Tiwanaku than Dr Yates or Dr Young-Sánchez (although both had spent considerable time there) and to be more intimately familiar with the history of the archaeologists who had visited the site. Once I have explained Dr Vranich's theory of how the Artefact came to be removed from Tiwanaku, I will return briefly to this topic to explain why I do not think that this difference between Dr Yates and Dr Vranich matters. 223 Dr Vranich was able to narrow the range of 1910-1940 to a likely date of removal in the mid-1930s on the basis of known excavations. In particular, he noted that most intact archaeological pieces of high value were found in 1934 during excavations by the archaeologist Dr Eduardo Casanova. Dr Casanova had excavated 25 pits in Tiwanaku's cemetery area where intact objects were most likely to be found since they were intentionally buried. Mr Condori also gave evidence confirming that Dr Casanova had conducted excavations at Tiwanaku in 1934 the results of which had been published in Argentina. 224 The results of Dr Casanova's 1934 excavation had been placed on a train which was bound for Argentina. However, it was stopped at the Argentinean border by customs officials. Many of the objects on the train passed through the hands of various persons (including a customs official who held one of the three largest private collections of Tiwanaku objects called Fritz Buck). Most of these eventually found their way into the hands of the Bolivian government although some 3,644 objects remain in storage and on display in Prague. All of the objects removed from the train are therefore well-documented. However, some of the objects remained on the train and eventually found their way to Buenos Aires. Dr Vranich thought that the Artefact was likely amongst these objects. I took from his evidence that the residue of Dr Casanova's 1934 excavations after the encounter with Fritz Buck and others was not well-documented. 225 Mr Condori's evidence about this was more general but he noted that some of Dr Casanova's excavated items had 'enriched' the Museum of Ethnology in Buenos Aires, a state of affairs it was apparent he thought regrettable. Mr Condori thought that Dr Casanova's work had spread the word about the Tiwanaku site and this may have resulted in clandestine digs prior to 1950. 226 On this evidence the excavations of Dr Casanova may, therefore, have directly resulted in the uncovering of the Artefact in 1934 when the cemetery pits were dug or alternatively resulted in its clandestine excavation before 1950 when news of Dr Casanova's successes in his 1934 expedition to Tiwanaku spread to the artefact-collecting public. 227 It will be seen therefore that Dr Vranich's account of a black market in Tiwanaku objects during the period 1910 to 1940 does not form part of the reason he advances for how the Artefact came to be discovered. In particular, unlike Dr Yates, he does not ascribe the removal of the Artefact from Tiwanaku to looting to meet the demands of the black market but rather to an orderly process of archaeological excavation. Thus, whilst I prefer Dr Yates's evidence on when the black market arose to Dr Vranich's, his conclusions do not rest on the existence of that black market. Whether or not a black market existed by 1934, there seems little doubt that a number of objects excavated from Tiwanaku found their way to Buenos Aires that year and, through mechanisms which are unclear, some of these ended up in a museum there. Some also seem to have passed through the hands of at least Fritz Buck in Bolivia but, as Dr Vranich noted, this part of the cache is well-documented. As such, Dr Vranich's view is that the Artefact likely formed part of the residual cache of objects that remained on the train to Buenos Aires. 228 The Applicant submitted at ACS [130] that it was significant that Dr Yates and Dr Vranich differed on why they thought the Artefact had been removed after 1906. I do not agree. They had alternate explanations for why it left after 1906. I consider it legitimate for the Commonwealth to use their evidence in a cumulative fashion. Whilst they are inconsistent on when after 1906 the Artefact was removed, they are consistent on the fact that it was removed after 1906 which is the issue in the case. In that sense, they are not mutually exclusive as submitted.
The absence of challenge by the Applicant to the factual underpinnings of the Commonwealth's post-1906 removal hypotheses 229 Although the Applicant attacked the evidence of Dr Yates and Dr Vranich, these attacks related to their evidence about the improbability of the Artefact's removal from Bolivia prior to 1906. I did not apprehend the Applicant to deny the events surrounding Dr Casanova's expedition in 1934 or Dr Yates's description of the looting which occurred in the late 1940s and 1950s or her diagnosis of its causes.
The Applicant's pre-1906 removal hypotheses 230 In the path of the two hypotheses advanced by Dr Yates and Dr Vranich, the Applicant placed a series of hypotheses which, if accepted, suggested a date of removal before 1906. Before turning to those it is convenient briefly to recall the relevant legal issues. The Plurinational State of Bolivia did not exist until 1825. Section 14(1)(a) will not be engaged unless the Artefact 'has been exported from that country'. If before 1825 the Artefact had been removed from what would, but had not yet, become Bolivia, I do not think that it could be said that it been exported from Bolivia within the meaning of s 14(1)(a) so that the Commonwealth would fail for that reason. That conclusion makes it unnecessary to wrestle with the much more difficult question of whether an object removed from Tiwanaku by the Inca to their capital, Cuzco, in what is now Peru would mean that the Artefact was part of the movable cultural heritage of Peru or whether it would still be part of the movable cultural heritage of Bolivia or perhaps whether it would be part of the movable cultural heritage of both nations. One may also put to one side the incendiary proposition that if the Artefact was taken during the Colonial Period it might have constituted part of the movable cultural heritage of Spain. 231 If, on the other hand, the Artefact was removed between 1825 and 1906 then, whilst Bolivia existed, export of the Artefact would not have been unlawful under Bolivian law so that s 14(1)(b) would not be engaged and the Commonwealth would fail for that reason. 232 The Applicant posits for consideration, or at least flirts with, the following hypotheses to explain how the Artefact might have been removed from Tiwanaku before 1906: (a) transfer by the Tiwanaku themselves to Tiwanaku sites in the Moquegua Valley in Peru; (b) transfer by the Tiwanaku to a Tiwanaku site in the Atacama Desert in Chile; (c) transfer by the Tiwanaku to islands within Lake Titicaca; (d) transfer by the Tiwanaku to sites along the Pacific coastline; (e) manufacture by the Tiwanaku at a site outside Bolivia; (f) exchange of goods with the Wari in the Moquegua Valley; (g) manufacture by the Wari in the Moquegua Valley; (h) gift-giving in the 15th century; (i) removal by another civilisation such as the Inca or the Aztec; (j) removal by treasure hunters during the Colonial Period; or (k) removal by archaeologists or other collectors principally in the 19th century. 233 Hypotheses (a)-(i) all place the Artefact outside Bolivia before the Spanish Conquest. There was some evidence about this. Dr Young-Sánchez gave evidence in her report that it was possible that the Artefact had been removed before the Spanish Conquest. However, her report did not address the detail of options (a)-(i) although in relation to (f) and (g) she did refer to the fact that the Wari were regarded as disseminators of Tiwanaku-style artefacts. She was not cross-examined to suggest that removal along the lines of (a)-(i) was not possible and indeed one may accept that its removal in any of these fashions is possible in the sense that at a distance of more than a millennium no one can say any of them is impossible. 234 Pitched at this level, however, Dr Young-Sánchez's evidence is really little more than a thought experiment. I can imagine that the Artefact was taken by the Inca but the vividness of my imagination in that regard provides little material from which I could rationally assess the probability that such an historical event actually occurred. 235 Dr Vranich made a general point against each of the Applicant's removal hypotheses. This was that the nature of the Artefact indicated that it had been venerated and that this, together with the amount of time it would have taken to make, indicated that it was not an object which should be moved. As such, the circumstances of its removal would be limited to extreme events such as theft, conquest or the spoils of war. As I have explained previously, whilst Dr Vranich may well be correct that the Artefact was venerated, I do not feel that I can be satisfied that this is so at the civil standard. I therefore do not think that I should act on this aspect of his evidence. 236 The Applicant was not unaware of the general methodological difficulty it faced and actively sought to address it by adducing evidence through the cross-examination of Dr Vranich and Dr Yates and by the tender of a limited range of documents most of which became the very interesting Exhibit 4. Most of the hypotheses (a)-(k) were explored with them (although some were not) and, in my view, the probabilities of these hypotheses largely rise and fall with their evidence rather than with Dr Young-Sánchez's conception of what lies in the realm of the possible (leaving aside in that remark her specific evidence about the Wari). 237 The decision by the Applicant to explore hypotheses explaining the removal of the Artefact before 1906 is conceptually significant in assessing whether the Artefact was removed after 1906. This is because it is a known fact that it was either removed before 1906 or removed after 1906 - there are no other possibilities. Thus in principle the likelihood of the competing pre-1906 and post-1906 removal hypotheses have an impact on each other. 238 The extent of that mutual effect is itself impacted by the possibility of other removal hypotheses not canvassed by the parties in their evidence. For example, anything is possible particularly over the long periods of time involved in this case. Thus, one may countenance the possibility that the Artefact was removed by a local villager in the 18th century who found it whilst digging a well and given to a travelling priest who took it with him back to the Old World, before it was brought to Buenos Aires as part of the exodus of German officials to South America after the Second World War. One may also consider it possible that the Artefact was removed in 1938 by a group of Bolivian teenagers on a school camping trip. However, neither party traversed the terrain of possibilities of this kind. Instead the Court was presented with the various (and conflicting) views of three archaeologists expert in their field as to how the removal had occurred. Whilst I accept these other theories are possible the fact that none of the experts thought them worth mentioning means that in the context of a civil trial I am not disposed to give them much weight in the fact finding process. Thus, it continues to be the case that the likelihood of removal before 1906 is strongly inversely correlated to the likelihood of the post-1906 removal hypotheses. The strength of the inverse correlation is tempered by the fact that anything is possible but, as I have just explained, given the manner in which the trial was conducted I do not think that this tempering effect is at all strong. 239 A forensic artefact of this conclusion should also be noted. If the Commonwealth's evidence in chief were considered entirely in isolation then one possibility might be that I would conclude that the post-1906 removal hypothesis was not established on the balance of probabilities. For example, one might arrive at the view that it was quite possible that the Artefact had been removed in the fashion described by Dr Vranich or looted in the manner advanced by Dr Yates. But one might still not be affirmatively satisfied that this is what occurred. 240 However, the decision of the Applicant to enter the debate and to seek to explore the possibility of removal before 1906 alters this calculus for, as I have explained, the likelihood of removal before and after 1906 are related in the fashion I have described.
(a) Transfer by the Tiwanaku to Tiwanaku sites in the Moquegua Valley in Peru? 241 The cross-examination of Dr Vranich and Dr Yates established the following matters. First, there were exchanges of goods and people between Tiwanaku and the sites in the Moquegua Valley during the Tiwanaku period: T164.12. Dr Yates accepted at T166.31 that there was trade between these sites as well as movement between them which may have been occasioned by a desire for a 'seasonal change of scene', which I took to mean the movement of the Tiwanaku to a warmer climate during the winter. 242 There is no doubt that there are Tiwanaku sites in the Moquegua Valley and that these sites have been extensively excavated. These sites were not connected to the Lake Titicaca basin (where Tiwanaku is situated) by a formal system of roads. I am prepared to accept the evidence of Dr Young-Sánchez and Dr Vranich to the effect that such exchanges likely took place by means of llama caravans. But Dr Vranich thought that it would take several days for such a caravan to travel from the Lake Titicaca basin to the Moquegua Valley and he was of the opinion that the objects which had been traded were smaller, weighed less and did not involve the level of craftsmanship exhibited in the Artefact. 243 Secondly, the evidence does not permit of any more than speculation about the relationship between the sites at the Moquegua Valley and the city of Tiwanaku. Dr Vranich gave evidence that the question is the subject of a hypothesis amongst archaeologists that the two sites might have been connected in wide family or kinship groups. And, of course, I have already referred to the evidence of Dr Young-Sánchez that the nature of the relationship between Tiwanaku and the sites distant from Tiwanaku remains the subject of debate. 244 Thirdly, Dr Vranich gave evidence that no basalt object has ever been found at a Tiwanaku site outside of Tiwanaku (with the single exception of an object dragged to Lukurmata from Tiwanaku). He also said that goods like the Artefact had not been found at the sites in the Moquegua Valley. This is important given his evidence about the extensive nature of the excavations at these sites. This may be contrasted with Dr Young-Sánchez's evidence about the less complete documentation of the much larger site at Tiwanaku. However, Dr Young-Sánchez was less certain than Dr Vranich about whether it was possible that stone objects were made away from Tiwanaku. She was asked to comment on his evidence and said this at T121.16-20: DR YOUNG-SÁNCHEZ: Well, I wouldn't say that we know that it did not occur elsewhere. The place that we have - there is clear archaeological evidence that it did occur is Tiwanaku. I don't know that you could extrapolate from that that it never occurred, could never have occurred elsewhere. There's, you know, I don't think enough excavation has been done to sort of rule that out as a possibility. 245 Dr Vranich was then asked for his response at T121.22-26: MR LANCASTER: Do you accept that, Dr Vranich? DR VRANICH: I will stand by the - the - by my declaration that the type of precise stonework of planar surfaces, right angles, incisions, carving ..... internal angles are only found at Tiwanaku. 246 Dr Young-Sánchez's evidence was not that stonework was carried on outside of Tiwanaku; it was that the current state of excavation of Tiwanaku sites was not sufficiently advanced to rule out the possibility. The contest here is between Dr Vranich's evidence that basalt objects have not been found outside Tiwanaku except at Lukurmata and Dr Young-Sánchez's evidence that the extent of excavations of Tiwanaku sites is not sufficiently well-advanced to allow one to say definitively that stonework was not carried out at these other sites. 247 Dr Young-Sánchez was not asked to identify the sites which she did not think had been sufficiently excavated to permit the drawing of this conclusion. I have referred to Dr Young-Sánchez's evidence that the excavation of the Tiwanaku site itself is far from complete. However, there was evidence about the extent of the excavations at the Moquegua Valley and at San Pedro de Atacama. Dr Vranich said that the excavations in the Moquegua Valley and San Pedro de Atacama 'have been extensive and, in many ways, it has helped us more define what is Tiwanaku than excavations at Tiwanaku [itself]': T80.17-18. And in giving his evidence that no basalt objects had been found in either place he was explicit at T82.18-20 that his view was based on the extensive nature of the excavations in those places. It was not put to Dr Vranich that the excavations in these places had not been extensive or had not been sufficiently extensive for him to be able to express that opinion. 248 In the case of the Moquegua Valley and San Pedro de Atacama I propose to accept Dr Vranich's evidence about this over Dr Young-Sánchez's since his evidence about the extent of excavations was more detailed. 249 Fourthly, as Dr Young-Sánchez noted, the Artefact differed from site-specific sculptures such as, perhaps, the large figural sculpture holding a kero mentioned by Dr Yates. The Artefact was hence capable of being moved, even though it was heavy. Although there was no specific evidence about this, I am prepared to infer that the Artefact is not too large to be carried on a llama. According to Dr Vranich, basalt Tiwanaku objects are rare and he put the number of such objects at around a dozen as well as one which was incorporated in architecture: T84.38-39. Dr Vranich thought that there were three examples of in-situ basalt objects: T82.14-15, 88.45-89.29. Dr Young-Sánchez also thought that there was not a 'huge quantity of basalt objects that are out there': T82.25-26. 250 Apart from the Artefact and Dr Vranich's three objects found in-situ, the evidence disclosed only four other basalt objects (although I accept there are approximately a dozen such objects in total). These were: the object which turned up in Puno in 1888 (now in the Ethnological Museum of Berlin), the object referred to by Dr Vranich as having been dragged over the low hills to Lukurmata, the chachapumas instanced by Dr Yates and a second unprovenanced basalt object referred to by Dr Vranich at T89.38-90.21. There are also references to a feline figure in the Musée du Quai Branly in Paris, however, as I will explain, on the evidence before me it is unclear whether this object is basalt and whether it is provenanced or not. The feline in Paris is therefore not relevant for this part of the analysis. 251 The object at Lukurmata provides no evidence that objects like the Artefact were moved from Tiwanaku since dragging suggests an object of greater size inconsistent with the Applicant's nominated mode of transport, llama. In any event, Lukurmata is in the next valley from Tiwanaku and within Bolivia. Dr Yates's chachapumas were found at Tiwanaku. In relation to the object which surfaced at Puno in 1888, the Applicant put to Dr Yates that it had been removed from Bolivia at T145.32 and she agreed. There is thus no evidence that it was ever in the Moquegua Valley or that it was removed to Puno from there. 252 As to Dr Vranich's second unprovenanced basalt object, it was identified as a Pucara-style object, rather than a Tiwanaku object, and hence can shed no light on transfers of basalt objects by the Tiwanaku. What one can say is that the number of Tiwanaku basalt objects is small, perhaps no more than a dozen, and this may be contrasted with the much larger number of other Tiwanaku objects that exist which, on the evidence, includes at least 3,644 objects in Prague from a part of Dr Casanova's 1934 expedition. As I explain later in these reasons, there were several significant expeditions in the 19th century. It is open to infer, and I do, that the number of Tiwanaku objects in general is large being at least in the thousands and possibly much more. The dozen or so basalt objects which have been discovered must be seen in that context. 253 Fifthly, both Dr Yates and Dr Vranich accepted that it was possible that the Artefact had been transferred to the Moquegua Valley from Tiwanaku which was an appropriate concession. However, Dr Vranich did not think that such a transfer was supported by the available archaeological evidence. Dr Yates went further and said that the physical evidence in the Moquegua Valley was against the idea that the Artefact had been transferred there from Tiwanaku. Whilst she accepted that transfer was possible she did not think that it was plausible. She further accepted that a transfer as part of a seasonal movement was possible but she did not think it plausible on the 'absolute weight of the archaeological evidence from those sites': T166.31-32. 254 On this basis, I find that transfer of the Artefact from Tiwanaku to the sites in the Moquegua Valley was possible but, as the archaeological record is presently understood, very unlikely. The excavations at the Moquegua Valley have been extensive and no similar object has been located there. Across all of the Tiwanaku sites there is no evidence of a basalt object ever having been transferred in the fashion now suggested (apart from the object dragged to Lukurmata which I do not consider assists the Applicant's case). It is possible that further excavations at other Tiwanaku sites may reveal that there were exchanges of basalt objects within the Tiwanaku culture. However, that seems unlikely given Dr Vranich's evidence about the extensive nature of the excavations in the Moquegua Valley. I think it very unlikely therefore that the Artefact was transferred to the Moquegua Valley in this fashion. 255 Of course, this does not mean it is impossible. It is also not impossible that one day Hittite artefacts may be found in Canada but at the moment the hypothesis of a Hittite-Americas trade route is not consistent with the archaeological record. The same is true here. There is no evidence of the exchange of basalt goods from Tiwanaku to the Moquegua Valley.
(b) Transfer by the Tiwanaku to Tiwanaku sites in the Atacama Desert in Chile? 256 It is not in dispute that Tiwanaku sites have been discovered in the Atacama Desert. Dr Vranich identified the primary site as San Pedro de Atacama which was an oasis town. A large number of burials have been excavated at San Pedro de Atacama and the excavations there have been extensive. 257 San Pedro de Atacama is not on the coast and is at a lower altitude than Tiwanaku. Dr Young-Sánchez pointed out that Tiwanaku was at a high altitude and that there was a long-standing tradition of persons at high altitudes travelling to lower altitudes to obtain foods or other materials. I do not accept that an oasis town in the Atacama Desert is likely to have been a place to which the Tiwanaku resorted for food. Dr Young-Sánchez thought that the Tiwanaku might also have travelled there to obtain minerals but the nature of these minerals was not explained and there is no evidence before me that the oasis village of San Pedro de Atacama was a mineral centre. Although the possibility that San Pedro de Atacama was a source of minerals was put to Dr Vranich he did not give evidence that it was: T165.16. 258 The situation with San Pedro de Atacama is therefore either the same as or even less substantial than the situation at the sites in the Moquegua Valley. I therefore find that the transfer of the Artefact to San Pedro de Atacama during the Tiwanaku period was possible but as the archaeological record is presently understood very unlikely.
(c) Transfer by the Tiwanaku to islands in Lake Titicaca 259 The evidence during the concurrent session touched on three islands in Lake Titicaca. Dr Young-Sánchez gave evidence that there was evidence on several islands of cultures associated with the Tiwanaku. She also noted in her report that these sites have received very limited study by archaeologists to date which, as will be seen, is consistent with what the evidence in this case shows. The islands discussed in the evidence were the Island of the Sun which is in Bolivia, and the islands of Tikonata and Isla Esteves which are in the Peruvian part of the lake. Isla Esteves was only tangentially mentioned and, as a hypothesis, transfer of the Artefact to Isla Esteves is in much the same position as Tikonata and does not rise higher for the Applicant's case than Tikonata does.
(i) The Island of the Sun 260 The Island of the Sun is located in the Bolivian part of Lake Titicaca. Dr Vranich gave evidence that what appeared to be a Tiwanaku temple had been found on the Island of the Sun as had some Tiwanaku artefacts. The archaeologist Charles Stanish had worked on the east side of the Island of the Sun according to Dr Vranich: T97.41-42. The evidence about the Island of the Sun did not extend further than this. 261 I accept that the Tiwanaku were present on the Island of the Sun. I do not accept that it has been shown that any basalt Tiwanaku objects have been found there. On the present state of the archaeological record, the evidence does not sustain the proposition that the Artefact was transported to the island as part of an exchange of goods. The nature of the artefacts found there is unknown on the evidence and the nature of the temple is similarly obscure; in particular, there is no evidence about the nature of the stonework there (assuming the temple is stone) or whether it included any basalt. There is no evidence of any items of sculpture, keros or incensarios and none of the witnesses suggested that there were grave sites. At best all that can be said is that the Tiwanaku visited the Island of the Sun for ritual purposes and that artefacts have been found there. 262 It is possible that the Artefact was transported by the Tiwanaku to the Island of the Sun for ritual purposes. However, I do not know anything about these rituals except that they may have been associated with the production of maize. In that circumstance, whilst I accept that the hypothesis that the Artefact had been transported to the Island of the Sun is possible it strikes me as speculative on the known archaeological evidence disclosed during this hearing. 263 A further problem would remain concerning the important question of how the Artefact, if transported to the Island of the Sun, came to be in the hands of Mr Osona by the 1950s. The evidence for excavations at the Island of the Sun is limited to those carried out by Stanish. It was not suggested that Stanish had uncovered the Artefact and I do not find that he did. I will return to the evidence of looting of the site of Tiwanaku itself a little later in these reasons, but I was taken to no evidence that there had been looting on the Island of the Sun and the only evidence which would explain its removal from the Island of the Sun is Dr Yates's evidence about the Picasso-inspired looting beginning in the late 1940s. Thus the evidence provides no foundation for a finding that the Artefact had been discovered on the Island of the Sun before 1906. In any event, even if the Artefact had been transported by the Tiwanaku to the Island of the Sun it would have remained in Bolivia and this hypothesis would have led nowhere for the Applicant.
(ii) The island of Tikonata 264 Tikonata is located within that part of Lake Titicaca which lies within modern Peru, that is to say, on the northern side of the lake. Dr Young-Sánchez gave evidence that Stanish had written an article reporting the finding of Tiwanaku artefacts on Tikonata and on the adjacent shore. Stanish had expressed the opinion that many of the islands in Lake Titicaca were ritual centres where the Tiwanaku (and before them the Pucara) had conducted rituals relating to the cultivation of maize. 265 The evidence included a photograph of an incensario. Dr Young-Sánchez believed that the photograph had been published by Stanish and that it was from Tikonata. She thought that Stanish's work at Tikonata had been a 'salvage excavation or expedition'. Dr Vranich initially thought the incensario was from the northern side of the lake (which is where Tikonata is) but then became a little confused because he thought Stanish had worked at the Island of the Sun which is on the eastern side of the lake. This led him to say eventually 'So I don't know where this is coming from'. However, Dr Young-Sánchez reminded Dr Vranich of Stanish's salvage excavation at Tikonata and, in particular, that Stanish had actually cited Dr Vranich in his article on this excavation. This revived Dr Vranich's memory of Stanish's salvage excavation and he accepted that the incensario came from Tikonata. The Applicant submitted that Dr Vranich's initial answer had been unresponsive. I do not accept this criticism. Dr Vranich was clearly at first confused by the object and the answer he gave merely reflected this. 266 It is then necessary to take a slight detour because of a submission made by the Applicant that another aspect of Dr Vranich's evidence about the island of Tikonata was unsatisfactory. He gave evidence at T75.7-12 that he was more familiar with the islands on the Bolivian side of the lake and that there were Tiwanaku artefacts on the Island of the Sun. Insofar as the Peruvian islands were concerned, he was aware that a hotel had been constructed on Isla Esteves in the 1970s and that this had resulted in the destruction of a Tiwanaku settlement but he had not seen any publications about this. Subsequent to this (but on the same day he gave the evidence to which I have already referred) he accepted that the incensario photographed by Stanish came from Tikonata in Peru. 267 On the next day of the concurrent session, it was put to him that it was possible that if the Artefact had been manufactured in Tiwanaku it could have made its way to one of the Peruvian islands for trade or for ceremonial purposes. The exchange went as follows: MR LANCASTER: Assuming this object was manufactured in the Tiwanaku capital, that it was moved in ancient times to an island on Lake Titicaca that is now part of Peru for ceremonial or trade or other purposes, and subsequently made its way somehow to Argentina. That's something that would've happened, is it not? DR VRANICH: And the archaeological evidence indicates that no such objects are found on the islands or in Moquegua, and the likely roots of exchange during this period of antiquity exchange would not support that. However, the possibility that an object moving, if we consider possibility - very small possibilities, yes, it could've done that. 268 It was submitted that by this answer Dr Vranich was being categorical that there were no Tiwanaku artefacts like the Artefact to be found on the islands on the Peruvian side of Lake Titicaca (which would include Tikonata) and that this contradicted his evidence on the first day of the concurrent session that he was more familiar with the islands on the Bolivian side of the lake. His evidence was not that the Tiwanaku objects on the islands on the Peruvian side of the lake had not been found and, indeed, he had already accepted that Stanish's incensario came from Tikonata on that side of the lake. The question he was asked was not about Tiwanaku objects in general but rather about Tiwanaku objects which had been subject to movement by reason of ceremonial, trade or other purposes. The answer he gave was addressed to that topic. 269 Nevertheless, the Applicant is correct that Dr Vranich's certainty that no object of that kind had been found on the islands in Peru is in tension with his statement the previous day that he was less familiar with those islands. It might perhaps have been preferable for him to say that he was unaware of any such exchanged objects. As such, I do accept that Dr Vranich does have a tendency to overstate his certainty. However, I do not think this diminishes his evidence more generally and this tendency may be accommodated in the fact finding process simply by being aware of its existence. 270 Returning then to what the evidence shows about Tikonata, there seems little doubt therefore that an incensario made by the Tiwanaku was found there and, further, that it is likely that the Tiwanaku carried out ritual activities on the island probably associated with the cultivation of maize. An effort was then made by the Applicant to establish that the incensario recovered by Stanish was made from basalt. In my view, this effort failed. Dr Vranich denied it was basalt and said instead that it was ceramic. Dr Yates, too, thought that it was not basalt. She thought that the incensario was painted and that this would have been affixed during the firing process of ceramics. Dr Young-Sánchez expressed no view on this question and the Applicant did not attempt to adduce any other evidence which suggested that it was made from basalt. I conclude that Stanish's incensario is ceramic and not made from basalt. 271 I find that artefacts made by the Tiwanaku have been found on the island of Tikonata including a ceramic incensario. The evidence does not disclose any basalt object made by the Tiwanaku that has been found on Tikonata. I find that the Tiwanaku conducted ritual activities on Tikonata probably associated with the production of maize. 272 In those circumstances, the situation is the same as in the case of the Island of the Sun and my reasoning follows parallel lines: it is possible, although speculative, that the Artefact was transported by the Tiwanaku to Tikonata. However, there is no evidence of archaeological excavations on the island apart from Stanish's. Consequently, I conclude that the hypothesis is very unlikely. 273 In reaching this conclusion, I have not relied upon the evidence of Mr Condori who agreed that he was not aware of the research which had been done on the islands that lay on the Peruvian side of the lake: ACS [52(b)]. Dr Yates also said that she had no knowledge of the islands that were not on the Bolivian side of the lake: T75.22, 166.17-18. The Applicant described this as a difficulty with Dr Yates's evidence: ACS [56(a)]. However, Dr Yates did not express any opinion about the Peruvian islands so it is difficult to be clear what this difficulty is. In any event, in reaching the conclusion in the preceding paragraph I have not relied on Dr Yates's evidence except in relation to whether the incensario photographed by Stanish was ceramic or basalt. I do not think that Dr Yates's lack of knowledge about the Peruvian islands in Lake Titicaca adversely affected her ability to give that evidence.
(d) Exchange with or manufacture by the Tiwanaku at sites along the Pacific coastline 274 Mr Condori gave evidence that there were Tiwanaku towns along the Pacific coastline at T42.1-16. As Bolivia is landlocked, any possible sites located on the Pacific coastline would be in Peru or Chile. Dr Vranich, on the other hand, was quite clear that there were no Tiwanaku settlements on the Pacific Coast: T71.6-21. Dr Young-Sánchez did refer to Tiwanaku settlements on the Pacific Coast although she did observe that San Pedro de Atacama was not on the coastline. Dr Yates was not asked about this. Assuming that there were Tiwanaku settlements on the Pacific Coast, there is no evidence of what has been found there and hence there is no evidence that a basalt object has ever been found there. There is also no evidence of the existence of any basalt quarries used by the Tiwanaku at these sites and there is a complete absence of any evidence suggesting a system of exchange of goods between Tiwanaku (where I am satisfied basalt objects were made) and these settlements (if they exist). The evidence about this may be usefully contrasted with the evidence about exchanges with the people who were at the Moquegua Valley and San Pedro de Atacama. I also find that this hypothesis is very unlikely.
(e) Manufacture by the Tiwanaku at sites outside Bolivia 275 It is not entirely clear to me whether the Applicant actually advanced this case. ACS [76]-[77] is consistent with such a case being advanced and, as will be seen, some of the Applicant's criticisms of Dr Yates rested on the correctness of this hypothesis. In the interests of being comprehensive, I will consider it. The evidence discloses only four basalt objects 'found' outside Tiwanaku. The first is the Pucara basalt object provenance of which is unknown on the evidence, but which is likely to have originated in Peru given that that was the primary geographic sphere of influence of the Pucara civilisation. I am satisfied that this object was made by the Pucara civilisation rather than the Tiwanaku and it therefore has no present relevance. The second basalt object is the object purchased in Puno in 1888 and presently housed in the Ethnological Museum of Berlin. The third is the object mentioned by Dr Vranich as having been dragged over the low hills to Lukurmata. Since this object was made at Tiwanaku and remains in Bolivia it too has no present relevance. The fourth is the feline in the Musée du Quai Branly in Paris. It is only necessary therefore in the present context to consider the significance of the Berlin object and the feline in Paris.
(i) The feline in Paris 276 This was referred to by Dr Yates on the second day of the concurrent session. It will be recalled that Dr Yates was challenged about the setting back of the nostrils from the mouth on the feline head on the first day of the concurrent session and that in the hiatus before the second day of the concurrent session she had taken to Twitter to determine the provenance of a Tiwanaku feline head with its nostrils set back from its mouth. Since that part of the concurrent evidence session had concluded when the second day resumed no effort was made to put the results of Dr Yates's quest before me and I therefore do not know what the actual outcome of this was. However, it did result in her cross-examination on the second day. 277 The cross-examination begins at around T152. It seems from Dr Yates's tweets that she had located a Tiwanaku feline figure which suited her purposes and that she was attempting to ascertain whether it had been collected by an archaeologist called d'Orbigny in the 1830s (I deal with d'Orbigny in more detail below on the question of whether the Artefact was removed in the 19th century). It is not clear to me whether the feline is basalt but I will assume that it was. Dr Yates was then cross-examined about the provenance of the feline. What Dr Yates knew about the object was that it was present in the Musée du Quai Branly. She had contacted the curator of the collection and ascertained that it was not one of the objects collected by d'Orbigny in the 1830s or by another archaeologist, Créqui-Montfort: T155.40-43. The Musée du Quai Branly had obtained the object in the 1940s from another French museum which had been established in the 1930s: T157-158. It was then put to her that it would be speculation as to whether the object had been removed from Bolivia before 1906. At T158.24-26 she accepted that it would be but she added 'I would say that that's speculation because, again, this is not an object I've reviewed in any detail. There could be documents; there could be not.' Dr Yates was then challenged to accept that the feline stood in the same position as the Artefact. At T158.43 Dr Yates accepted that if the Musée du Quai Branly did not have provenance documents then the comparison would be sound but she again said 'we don't know what documentation the quai Branly has about this object. We - we only know that it may come from d'Orbigny where…'. 278 The evidence does not persuade me that the feline figure either has provenance or not. Although the Commonwealth bears the legal burden of proving that the Artefact was removed from Bolivia after 1906, the proposition that the feline figure in the Musée du Quai Branly is unprovenanced is a proposition the Applicant advanced to meet that case. As such, as the party advancing the proposition it bore the forensic burden of proving it. Since the evidence does not establish whether the feline figure is provenanced or not, I conclude that the Applicant has not demonstrated that it is not. I therefore reject the proposition advanced at ACS [135] that the feline figure is an example of an unprovenanced object about which one can only speculate as to whether it was removed from Bolivia before 1906. The feline figure in Paris may therefore be put to one side.
(ii) The Berlin object 279 That leaves the object purchased by a doctor in Puno in 1888 and presently in the Ethnological Museum of Berlin. It is not known where the Berlin object was manufactured. But the Applicant elicited evidence from Dr Yates that it had been transferred to Puno from Bolivia. There is evidence of basalt quarries used by the Tiwanaku near Tiwanaku. There is no evidence of any basalt quarries in the Moquegua Valley or at San Pedro de Atacama. There is also no evidence of any basalt objects in either location. I was not taken to any evidence that Puno was a Tiwanaku centre and there is in any event no evidence of any basalt quarries in that place. There is evidence from Dr Yates and Dr Vranich that work with basalt was confined to Tiwanaku. 280 It is possible that ACS [76(c) and (d)] contain the assertion of a hypothesis of manufacture at extra-Bolivian Tiwanaku sites. Those paragraphs referred me to evidence of Dr Young-Sánchez at T74 that the Tiwanaku culture held some sway in the Moquegua Valley and that the people there, of unknown ethnic extraction, 'prized the objects that either they made or that were in the style that recalled Tiwanaku' and evidence that Dr Yates agreed with this proposition. To this may be added San Pedro de Atacama in Chile. 281 There was no disagreement between the experts that Tiwanaku-style objects had been made in the Moquegua Valley and San Pedro de Atacama. However, the evidence was entirely one way on whether any basalt objects had been found in these places and the evidence was that there had not. There is, of course, the basalt Berlin object collected at Puno. The Applicant's case about this object varied: at times it was said to be evidence of a basalt object made at Tiwanaku but removed from there and at other times it was said to be evidence of a basalt object made outside Bolivia. 282 Regardless of the nature and origins of the Berlin object, I am satisfied that there is not a skerrick of evidence for the manufacture of basalt objects at the Moquegua Valley or San Pedro de Atacama. There was also no evidence of any basalt quarries at or near these places used by the Tiwanaku. In that circumstance, I am satisfied at the civil standard that the Artefact was not manufactured by the Tiwanaku away from Tiwanaku itself. 283 Although the Applicant did not appear to me clearly to advance this hypothesis, at least one part of its criticisms of Dr Yates rested upon it which is the principal reason why I have dealt with it. The criticism related to evidence given by Dr Yates at T92.40-93.2: MR LANCASTER: Now, can I ask you, Dr Yates, the archaeological record, of course, doesn't allow us to say, does it, that black basalt objects were not manufactured at locations of Tiwanaku culture other than Tiwanaku itself. Is that right? DR YATES: The archaeological record doesn't allow us to say almost anything at all definitively. What the archaeological record gives us is the most likely scenario based on the weight of ever-growing evidence. The most likely scenario based on the weight of ever-growing evidence is that black basalt objects were manufactured in Bolivia and used in Bolivia. 284 The criticism was that this statement was made despite the absence of persuasive evidence and in the face of evidence to the contrary. In assessing this submission, it is necessary to attend to the question Dr Yates was asked which was concerned with whether the Tiwanaku made basalt objects outside of Tiwanaku. The submission does not identify the evidence which was to the contrary and in the face of which Dr Yates was apparently being truculent. 285 On the evidence, having dispensed with the feline in Paris, the only basalt object shown to have been found outside Bolivia is the Berlin object. It was not put to Dr Yates that the Berlin object had been manufactured outside of Bolivia and, to the contrary, she was cross-examined to the effect that it had been removed from Bolivia at T145.31-44: MR LANCASTER: Right. So the comparison is useful, I suggest to you, do you agree, because it shows that there is another example of an object that left Bolivia before 1906 - in this case, a long time before 1906 - without any record or provenance? DR YATES: No. That object does have a provenance back to the market in Puno, but no, there is no record for the Berlin object about how it physically left Bolivia, and I note when it physically left Bolivia, according to these records, it was not illegal for it to leave Bolivia, so there would be no records. There would be no customs stop and so on. But what exists for this object and all comparable objects of this kind that left Bolivia before 1906 is extensive records of these items existing in foreign collections that place them out of Bolivia before 1906. Do - I - I'm afraid I'm not being clear here. I - yes, your Berlin object shows that objects left Bolivia at all before 1906. I am saying that those objects are extremely well-documented. 286 I therefore do not accept the submission that Dr Yates's evidence about basalt objects only being manufactured in Bolivia was made in the face of evidence to the contrary. The only evidence that the Applicant led on this question was Dr Young-Sánchez's evidence about the Berlin object. However, the Applicant's cross-examination of Dr Yates established that this object was from Bolivia. Even if that were not so, so that the origins of the Berlin object remain entirely mysterious, this would not be evidence that the Berlin object was made outside Bolivia. It would be evidence that where the Berlin object was manufactured is unknown. It was the Applicant that put the Berlin object forward in Dr Young-Sánchez's report as an example of a basalt object found outside Bolivia but it was also the Applicant that elicited from Dr Yates the evidence that it had come to Puno from Bolivia. In that circumstance, I do not think that the attempt to prove that the Berlin object was manufactured outside Bolivia has succeeded. It either fails in the face of the assumptions underlying the Applicant's own cross-examination of Dr Yates and the results of that cross-examination or, if that is somehow to be ignored, fails because where the Berlin object was made is not known. In that circumstance, there is no evidence for the production of basalt Tiwanaku objects outside Bolivia. That of course leaves the Applicant's submission that Dr Yates's evidence about this was made 'despite the absence of any persuasive evidence'. There is nothing in this point. Given that Dr Yates has maintained that she knew of no Tiwanaku basalt objects made outside of Bolivia and the Applicant has not been able to identify any such objects, it is difficult to accept that there was no persuasive evidence in support of her conclusion that all Tiwanaku basalt objects were manufactured in Bolivia. I reject this criticism of Dr Yates's evidence. 287 In reaching that conclusion, I have not disregarded Dr Young-Sánchez's evidence about the existence of unprovenanced objects in private collections. However, this evidence is necessarily neutral on the question of whether basalt objects were made away from Tiwanaku. As I have explained above, I am satisfied that basalt objects were not made away from Tiwanaku.
(f) Exchanges between the Tiwanaku and the Wari in the Moquegua Valley 288 Again, it is not entirely clear that this hypothesis was actually advanced by the Applicant but I will proceed on the basis that it is raised by ACS [76(c)]. There was certainly some evidence given during the concurrent session about it. According to Dr Yates the Wari civilisation was roughly contemporaneous with the Tiwanaku: T76.11. Dr Young-Sánchez thought that there was a rough boundary line between the Wari and Tiwanaku spheres of influence in the Moquegua Valley: T72.12-14. The valley is fertile: T71.30-33. Dr Vranich accepted that in the valley the Wari and the Tiwanaku were neighbours: T77.6. Nevertheless, Dr Young-Sánchez thought that the Wari and the Tiwanaku practised a form of avoidance at least to the extent that they were not exchanging crops or food: T77.34-37. Dr Young-Sánchez thought that the Wari and the Tiwanaku shared 'closely related religious symmetry': T76.24. I think this is a transcription error and should read 'imagery' for she went on to say that they 'seem to derive from a single tradition, and then they are expressed in somewhat different ways, but they're clearly sharing an awful lot of the same religious ideas and religious icons'. In her report she said this: By the 1950's the archaeological site of Wari (Huari), located in highland Ayacucho, Peru, was recognized as the capital of a distinct ancient state partly contemporary with Tiwanaku. Wari is now regarded as the disseminator of many of the artifacts with Tiwanaku-related imagery uncovered in Peru. Decades of archaeological excavation and research have revealed much about Wari and the extent of its influence (Bergh 2012). 289 I do not read this as evidence that the Wari distributed Tiwanaku objects. In light of her evidence that the imagery of the Wari and the Tiwanaku are closely related I read this as evidence about the distribution of Wari objects bearing imagery on them which is related to the Tiwanaku in the sense I have just explained. For their part, Dr Vranich and Dr Yates accepted this too: T76.31-33. 290 The evidence about the intermingling of Tiwanaku objects amongst the Wari in the valley was the subject of some conflict. Dr Young-Sánchez thought that in the valley there were people using artefacts from both cultures: T72.14-15. On the other hand, Dr Vranich thought that the interaction between the Wari and the Tiwanaku in the Moquegua Valley was limited even though they were neighbours: T77.4-8. As he said, 'they seemed to live very separate lives' and this was reflected by the fact that at some sites the two cultures were divided by a waist-high wall: T77.20-21. There seemed to be no direct exchange of goods between them at least not to the extent one would expect of peoples who lived in such close proximity: T77.22-24. But there does appear to have been some exchange for, as Dr Vranich observed, there is a Wari site at which Tiwanaku objects have recently been found: T77.5-6. 291 The picture then with the Wari in the valley is unclear. They lived alongside the Tiwanaku but appear to have interacted with them in a limited way the precise details of which are unclear. Crops and food were not exchanged and goods were not directly exchanged but even so some Tiwanaku objects have been found at a Wari site. 292 I find that direct exchanges of goods between the Wari and the Tiwanaku were not anywhere near as extensive as one would expect of two cultures living side by side in a fertile valley but that nevertheless exchanges of goods were not entirely unknown. However, for the Artefact to have come to be in the possession of the Wari two events would need to have occurred. First, the Artefact would need to have found its way to a Tiwanaku site in the Moquegua Valley and, secondly, the Tiwanaku would need to have exchanged the Artefact in some way with the Wari. I have already concluded that the first event, whilst possible, is very unlikely. The second event is possible too although exchange in this way appears, for reasons presently unknown, to have been much less extensive than would be expected. In any event, the occurrence of both of these events is less likely than the occurrence of either of them and, in that circumstance, I conclude that the transfer of the Artefact to the Wari is even less likely than its transfer to the Tiwanaku in the Moquegua Valley.
(g) Manufacture by the Wari in the Moquegua Valley 293 It is also possible that ACS [76(c)] includes an assertion of a hypothesis that the Artefact was made by the Wari in the Moquegua Valley. As I have explained above, Dr Young-Sánchez, Dr Yates and Dr Vranich each gave evidence confirming that the religious imagery of the Wari and the Tiwanaku were similar. However, the proposition that the Artefact was made by the Wari was never put to Dr Yates or Dr Vranich for their comment. Dr Young-Sánchez gave evidence at T96.5-6 that many different cultures were capable of carving high-quality stone but apart from a mention of the Chavin culture which existed long before the Tiwanaku, she did not identify these cultures or suggest that the Artefact had been made by them. Thus, whilst it is true that both Dr Yates and Dr Vranich agreed with this proposition it was put to neither that the Artefact had been made by any other civilisation. In particular, it was not put to any of the witnesses that the Artefact had been made by the Wari. 294 I do not therefore think that it is open to the Applicant to pursue this hypothesis (assuming that it did which is not clear). If I am wrong about that and it is open, there is no evidence about the manufacture of basalt objects by the Wari and no evidence of any basalt quarries used by them in the Moquegua Valley. Further, Dr Young-Sánchez did not say that the Artefact appeared to be Wari and there is no evidence at all that its iconography is Wari rather than Tiwanaku. Beyond the general evidence about the similarity of the religious imagery of the two cultures, there is no evidence about the use by the Wari of feline figures, keros, incensarios, engraved depictions of animal heads, Greek key motifs or upper bands containing rectangles (segmented or not). Thus if this case is open to be pursued and was in fact pursued, I would reject it.
(h) Removal from Tiwanaku by some other Andean civilisation such as the Inca or the Aztec 295 This hypothesis is sustained only by Dr Young-Sánchez's opinion that it was possible. Neither Dr Vranich nor Dr Yates were cross-examined about this possibility so I do not think it is open to the Applicant to pursue it. In the event that it is open to the Applicant to pursue it I would not accept it. There is no evidence of any removal of artefacts from Tiwanaku by the Aztec or the Inca. The high water mark is Dr Young-Sánchez's evidence in her report that the Inca had 'claimed Lake Titicaca and Tiwanaku as sacred places of origin and pilgrimage (Bauer and Stanish 2001)'. But I would not infer from that statement that the Inca took objects from Tiwanaku. As Dr Young-Sánchez observed on the same page other Andean civilisations such as the Inca have been more closely studied. If there were examples of Tiwanaku artefacts at Inca or Aztec sites it may be inferred that Dr Young-Sánchez would have brought them to my attention. Indeed, the Applicant's decidedly thin position on the Inca and its even thinner position on the Aztec may be contrasted by what it did seek to prove about the Wari and the extensive probing it undertook in relation to the Island of the Sun and the island of Tikonata. In that context, I consider it significant that the Applicant did not seek to explore with Dr Yates or Dr Vranich what they thought about this hypothesis and I do not think that I should infer that what they may have said on the topic had they been asked would have been of assistance to the Applicant. In that circumstance, I do not think that this hypothesis rises above the merely conjectural. In any event, since Dr Yates and Dr Vranich were not cross-examined about it, I do not think it is procedurally open to the Applicant to advance this case.
(i) Gift-giving in the 15th century 296 The Applicant submitted that the Artefact may have been moved out of Bolivia in the pre-Columbian period as a result of gift-giving by a later culture in the 15th century. The evidence about this is at T86-87. In the course of re-examination, the point of which was to establish what the Artefact might have been used for, Dr Vranich was asked, on the assumption that the Artefact was a ceremonial kero with religious significance, whether it was likely to have been given away or sent elsewhere or retained. Dr Vranich's answer was that an object of the importance of the Artefact might be given away in extreme circumstances and he then said this at T87.2-8: And I'm only basing this on later gift-giving as recorded in the 15th century, and there was a wide range of gifts one would give to local people and to leaders. Something like this is considered a - if it's considered, let's say, a sacred object, it wouldn't move from its location unless somebody took it under conquest, under other types of - other types of acts. Something like this should stay, especially with the amount of effort that it was taken - that it was used to manufacture it. 297 It is not entirely clear to me what this means. However, Dr Yates was asked about this shortly afterwards and said that 'as Dr Vranich said, he is extracting this gift-giving from evidence collected hundreds of years later and a different culture'. 298 This much is clear. The Applicant advanced the gift-giving hypothesis as part of its suite of pre-Columbian removal hypotheses. The Tiwanaku culture had ended well before the 15th century. Whatever the gift-giving practice was, it was not a Tiwanaku practice which is the point made by Dr Yates. For it to have any relevance, therefore, it would be necessary to identify which culture or cultures had the practice in the 15th century and then to explain how the Artefact came to be in that culture's possession so that it could be subject to this practice. Although the Applicant has advanced the Wari hypothesis, the map tendered by the Applicant as part of Exhibit 1 (Tab 7) suggests that the Wari culture ended in around 1000 AD. As I have explained, I do not think it is open to consider the Aztec or the Inca. The map also refers to the Tawantinsuyu which the map suggests did exist between 1438 and 1533 but no evidence about this was adduced. As such, I do not accept that the hypothesis of the Artefact being removed from Bolivia as a result of gift-giving in the 15th century leads anywhere.
(j) Colonial Period looting 299 There is no doubt that the ruins at Tiwanaku were subject to looting during the Colonial Period which Dr Vranich identified as being from a few years before 1549 to 1823: T134.34-35. Amongst other activities, Dr Vranich maintains a website in which he publicly provides information about the Tiwanaku culture: T134.19. One of the pages of this website discusses the looting which occurred during the Colonial Period. It includes this statement: The ruins of Tiwanaku (AD 500-950) in the modern republic of Bolivia are an archaeological challenge due to intense colonial period looting that nearly destroyed the site. 300 Just after this passage Dr Vranich then discusses the Pumapunku, or the Gateway of the Puma, which he describes as an impressive collection of shattered and overturned architecture. Of the Pumapunku he then says this: For the last 500 years, treasure hunters have ransacked this building to the point none of approximately 200 blocks of andesite are in their original place. 301 Dr Vranich is not the only person who has commented on the destructive activities which have occurred at Tiwanaku. E. George Squier, the onetime United States Commissioner to Peru, touched on the topic in his 1877 work Peru: Incidents of Travel and Exploration in the Land of the Incas. This large work, which Dr Vranich thought was actually published by E. George Squier's brother, contains several chapters devoted to the Tiwanaku. At p 274-275 he said this: I shall give only a rapid account of these remains, correcting some of the errors and avoiding some of the extravagances of my predecessors in the same field of inquiry. I must confess I did not find many things that they had described; but that fact, in view of the destructiveness of treasure-hunters and the rapacity of ignorant collectors of antiquities, does not necessarily discredit their statements; for Tiahuanuco is a rifled ruin, with comparatively few yet sufficient evidences of former greatness. 302 Page 274 also contains support for the idea that the ruins at Tiwanaku were used as a stone quarry for the modern village of Tiwanaku and for the construction of the cathedral at La Paz, concluding with the pithy sentiment that 'The monuments of the past have furnished most of the materials for the public edifices, the bridges, and highways of the present day'. 303 Under cross-examination Dr Vranich resisted the proposition that the Artefact might have been removed by treasure hunters during this period of intense looting. He said that treasure hunters of the kind in question were looking for metals that could be melted down (T136.1-2) with a special emphasis on gold: T135.6. As such, the Artefact would have had no particular value to the treasure hunters during this period: T136.2-3. Indeed, Dr Vranich thought that had the Artefact been found by the treasure hunters early on there was a chance that it would have been smashed up because it would have been offensive to the treasure hunters' Catholic sensibilities: T136.6-7. 304 Dr Vranich was then cross-examined from T139.11 as to whether he accepted that it was possible that the Artefact had been removed by treasure hunters or looters during the 400-year period before 1906. His answer was that he did not accept this: T139.30. The cross-examiner pressed Dr Vranich on this by suggesting that 'something … could have happened' which resulted in Dr Vranich observing that if one was talking about a 0.01% possibility then nearly anything could have happened, 'including, you know, aliens': T140.8. It was evident that Dr Vranich was uncomfortable with conceding that it was at least possible that the Artefact had been removed by treasure hunters or looters during the Colonial Period although he did eventually concede that it was possible although very unlikely. 305 The Applicant submitted at ACS [60(b)(iii)] that this episode demonstrated that Dr Vranich was unwilling to concede that which was obvious which, in this case, is the proposition that anything is possible. If this were the entire universe of Dr Vranich's evidence about what treasure hunters and looters could possibly have done during the Colonial Period then I would be disposed to see the force of this. However, as Dr Vranich's cross-examination also showed the universe of evidence was not so confined. At T141.8-15 this exchange took place: MR LANCASTER: All right. And what I want to suggest to you is that there's no basis beyond speculation for you saying that it is possible but not likely? DR VRANICH: No. Speculation would not be a good term. Based on the scientific process of archaeology and the reasoning that we can do from looking at patterns of trade, looking at documentation of when things were available, when they weren't, recorded descriptions of the site and what was going on, the basis of my opinion is not speculation, but based on the process of archaeological methodology. 306 The reason that Dr Vranich regarded it as very unlikely and indeed in his mind verging on impossible was not speculation. Such a removal did not fit the known patterns in trade (which he had earlier explained related to metals), the documentation relating to when objects became available (i.e. provenance) and descriptions of the site. The reference to documentation is, I think, important and ties into a point made by Dr Vranich and Dr Yates which I discuss elsewhere, which is that there are no basalt Tiwanaku artefacts removed from Bolivia prior to 1906 which were undocumented. 307 I do think that Dr Vranich could have conceded more rapidly the cross-examiner's point that it was at least possible that the Artefact had been removed by treasure hunters and looters during the Colonial Period. But it is evident that he thought the degree of speculation involved in this line of questioning simply unacceptable. For example, at T140.38-44: MR LANCASTER: Dr Vranich, I think both parts of your answer show that you know what I'm asking and you're doing your level best not to answer my question; do you accept that? DR VRANICH: No. No. I'm having difficulty - difficulty correlating the level of uncertainty and the lack of what we consider probability in archaeology with what is considered to be the level of accepted probability in a legal case in Australia. 308 The cross-examiner correctly pointed out to Dr Vranich that such standards were not his concern and he was being asked about what was possible as that word is understood in ordinary English. It was the opening of that line of questioning that eventually led to Dr Vranich making the concession that it was possible in that sense. 309 My initial view of this episode which I continued to hold for quite a long time during the preparation of these reasons was that it did show that Dr Vranich was somewhat rigid in his views and unwilling to concede the obvious. However, more reflection has caused me to change my mind about this. It is evident that he regarded the anything-is-possible hypothesis as having no place in serious discourse and, I think, for much of the cross-examination his apparent unwillingness to concede that it was possible proceeded on an assumption on his part that it was not possible that he was being asked such a pointless question. It was only when the cross-examiner clarified at T140.47 that this was indeed the question that was being asked that Dr Vranich, evidently with some distaste, answered it. I do not therefore accept the central thrust of this criticism of Dr Vranich's evidence. I would accept that it did perhaps illustrate that Dr Vranich has to some extent a tendency towards excessive certainty. But as I have already noted, this does not require a rejection of the reliability of his evidence, merely an awareness of its existence. 310 On the other hand I would reject entirely another challenge made to Dr Vranich's credit by the Applicant. The Applicant criticised Dr Vranich for not disclosing in his reports the widespread looting at Tiwanaku during the Colonial Period. However, Dr Vranich's view was that the Artefact had been removed by Dr Casanova in 1934. Whilst it is true that the Applicant was entitled to explore with Dr Vranich in cross-examination the forensic possibilities of its colourful treasure hunter hypothesis, I see no particular reason why Dr Vranich was obliged to deal with that hypothesis in either of his reports. He had no need to do so in his first report because he was explaining why he thought that Dr Casanova was the relevant actor. Then, when he did his report in reply, there was nothing in Dr Young-Sánchez's report which suggested that she thought that the Artefact had been taken by Colonial Period treasure hunters or looters (although she did refer to visits to the site by travellers and scientists in the 150 years preceding her report: CB622). Indeed, her evidence was principally directed at demonstrating the Artefact was a modern fake or pastiche. It is difficult to see how Dr Vranich was in that circumstance obliged to meet in advance a theory which the Applicant did not unveil until the trial was well underway. 311 Dr Yates was also cross-examined to suggest that it was possible that the Artefact had been removed by treasure hunters or looters during the 400 years before 1906: T143. She did not accept it was possible. This exchange then occurred at T143.9-39: MR LANCASTER: You say it's impossible; that could never have happened? DR YATES: Well, again, I - I wanted to point out that when Dr Vranich mentioned aliens, there are people who honestly believed that aliens built parts of Tiwanaku. I don't believe that to be the case, but they are very sincere. And we're talking again about probability here. I don't think that aliens building the Pumapunka is probable. People such as Erich von Daniken would disagree with me. I do not believe it's possible that this object left Bolivia before 1906. If we're putting this down into the 0.1 aliens built the Pumapunka territory, okay. But I don't really want to - to - to - to exist in the realm of very unlikely probability. MR LANCASTER: Now, are you suggesting that there is no chance in your view that this object was removed in the 400 years or so before 1906 from the Tiwanaku capital and from Bolivia; there's just no chance that could have occurred? DR YATES: I think that, again, within the realm of what's possible, no, I don't think that that's - that's likely at all. MR LANCASTER: All right. So is it not possible or not likely? DR YATES: Again - let's go with not likely, because again, it is possible that aliens built the Pumapunka. So yes, it's possible. MR LANCASTER: Please, Dr Yates. I'm trying to raise a serious proposition with you, and I don't think you're taking my question seriously. DR YATES: I very much am taking your question seriously, and I understand what you're asking. But what I'm trying to tell the court here is that there - that anything is possible. But asking me as an archaeologist to acknowledge the possibility of something so extremely unlikely, it's very difficult for me to say that. I - I - it's - it's - it is possible, but extremely, extremely unlikely, and I'm happy to say that. 312 So Dr Yates's evidence was that it was extremely unlikely that the Artefact was removed from Tiwanaku in this fashion and she rated this possibility as being on a par with the possibility that the Pumapunku at Tiwanaku had been made by aliens (who it will be recalled were also implicated by Dr Vranich). On the basis of this exchange, the Applicant criticised Dr Yates for steadfastly refusing to entertain the possibility of removal by treasure hunters or looters. I think Dr Yates could have been more forthcoming about this but largely for the same reasons that I did not accept the parallel criticism of Dr Vranich's evidence, I do not accept this criticism of Dr Yates. Dr Yates evidently thought that the idea that the Artefact had been removed in this fashion was so unlikely as not to warrant serious discussion. Pointedly, there was no evidence about this topic from Dr Young-Sánchez. 313 Returning then to the evidence, the two cohorts of persons who might have removed the Artefact during the Colonial Period are those engaged in the quarrying of stone and the treasure hunters and looters. Specifically I do not consider the hypothesis that the Artefact may have been removed by local persons at this time who might have regarded it as sacred. Dr Vranich suggested at T136.3 that this was possible. However, the Applicant did not place reliance on this evidence and I do not consider it further. 314 I think stone quarrying may be put aside as an explanation for how the Artefact came out of the ground. I have already referred to Squier's statement that stones from Tiwanaku could be found in the cathedral at La Paz and Dr Vranich gave similar evidence that 'very nice stones' had been repurposed all the way from La Paz to Tiwanaku and several villages in its immediate vicinity: T135.13-14. The Artefact does not look like a piece of building material and does not look like it has been used as building material. I am comfortably satisfied that the Artefact was not removed from Tiwanaku as part of any stone quarrying venture. 315 It is possible, as a matter of ordinary English, that the Artefact was removed by treasure hunters or looters during the Colonial Period. However, I accept Dr Vranich and Dr Yates's evidence that this is really to say no more than that anything is possible. More relevant is that removal in such a fashion is inconsistent with the known patterns of trade which would have been focussed on metals and would mean that the Artefact went inexplicably undocumented until the 1950s. I cannot say this is impossible but I do think it is entirely speculative particularly when Dr Young-Sánchez gave no evidence about this.
(k) Archaeologists and collectors in the 19th century 316 There is no dispute that in the late 19th century a great deal of material was removed from the site by archaeologists and collectors. The Applicant submitted that there was increased interest in the site towards the later 1800s based on some evidence of Dr Vranich at T142.46-47 which I accept. I have no doubt that Dr Vranich thought that this was so in the case of collectors (and obviously the archaeologists). The evidence is less clear about the looters. He was asked at T142.26 whether the Artefact was the kind of object which might have been taken by a treasure hunter or collector or looter and he responded, 'I would say by the end of the 1800s, yes. And I would say yes, during this period that Squier is at the site'. He was then asked whether this would include earlier in the 19th century and the 18th century as well. This time he answered, 'No. No. These - these objects were not that much of interest. There was some interest in it, but much less. The intent of the treasure hunters and quarriers was either stone or metals that could be melted down.' I am not entirely clear then that Dr Vranich was saying that looting occurred at the site towards the end of the 1800s. On balance, it seems that he was. I am unclear about what the concept of looting involves before 1906 when removal of objects became unlawful and, in particular, how it differs from collecting. The 19th century 'looting' with which we are currently concerned took place in a world where there was cultural interest in Tiwanaku and is of course different to the Colonial Period looting just discussed which was fuelled principally by treasure hunters' rapacious desire for metals that could be melted down. Whilst I am quite clear that persons who removed objects from Tiwanaku after 1906 were looters it seems clear that the 19th century looting was connected to, or provided the supply for, persons interested in collecting objects. To the extent that there were lawful 19th century looters it seems to me that I should draw the same inference that they either were collectors themselves or were providing the loot, if that be the correct word, to collectors. Thus whilst I accept that there was evidence of lawful looting at the site towards the end of the 19th century this activity was merely an aspect of collecting. 317 The evidence of Dr Vranich and Dr Yates is that all of the material removed from Tiwanaku during this period appears in collections which are well-documented and this is because prior to 1906 it was not unlawful to remove Tiwanaku objects from Bolivia so there was no reason to conceal their existence. On the other hand, Dr Young-Sánchez gave this evidence at T128.40-46: Obviously, certain pieces have been documented in the 19th century outside of Bolivia, and then others in the 20th century outside of Bolivia. To my mind, it's not an impossibility that a piece could have left at any number of different times and not have been documented. So the lack of publication or other form of documentation, to me, doesn't give me any clear indication of when this object left Bolivia, assuming again that it is an ancient object and left some time in the modern era. 318 This difference between the experts is at the heart of this issue. Before resolving this, it is necessary to deal with the criticisms each party made of the other's experts on this question. 319 The Applicant made a number of submissions critical of Dr Yates's evidence about this. The first was that she had not disclosed in her report the fact that there were well-documented excavations at Tiwanaku and other travellers present at Tiwanaku particularly in the second half of the 19th century: ACS [56(c)]. I do not accept this criticism. 320 As to the well-documented excavations at Tiwanaku I would make these observations. Dr Yates agreed at T150.28 that there were at least two expeditions to Tiwanaku in the 19th century that removed objects from the site and she volunteered that Créqui-Montfort had conducted such an expedition in 1903: T150.35-36. She testified that results of his expedition were in the Musée du Quai Branly: T151.23. It was then put to her that she was aware that there was no comprehensive record of what Créqui-Montfort had taken. She responded that she would speculate that they were all recorded. The Applicant submitted at ACS [144] that it was notable that during her questioning she had been unable to confirm that everything collected by Créqui-Montfort in his 1903 expedition to Tiwanaku was indeed recorded. I do not think this is particularly notable. What would have been notable is if Dr Yates had been able to do any more than speculate given that she was entirely unforewarned that she was going to be questioned about whether the objects held in the Musée du Quai Branly included all of the objects taken by Créqui-Montfort. It is true that apart from Dr Yates and Dr Vranich's evidence that all the objects taken before 1906 were by that time documented there is no evidence of a single object removed before 1906 which remained undocumented until after 1906. On the other hand, I accept the Applicant's logical point that if such an object existed and remained undocumented there would be no evidence of its non-documentation. 321 Under questioning Dr Yates admitted that there had been another expedition earlier in the 19th century by d'Orbigny: T151.32. Dr Yates accepted that the expeditions had involved multiple participants and workers although she cavilled with the proposition that d'Orbigny was an archaeologist and thought of him more as an adventurer (perhaps in the Heinrich Schliemann mould): T152.1-3. She also gave evidence of an expedition by the archaeologist Max Uhle which had occurred in 1895: T161.1-14. At T162.5-29 this exchange occurred: MR LANCASTER: All right. So we can finish with that document. Thanks, Mr Tonkin. Dr Yates, today's evidence indicates that there were - in the 19th century and early - very early 20th century, the two French expeditions and the Max Uhle expedition to Tiahuanaco, during the course of which objects were removed from Tiahuanaco. Do you accept that? DR YATES: Absolutely. MR LANCASTER: Yes. It's right, isn't it, that in your written evidence you don't refer to any one of these three expeditions? DR YATES: I don't believe I refer to any of them specifically. No. MR LANCASTER: All right. Why is it the case you didn't refer to any of them when one of the topics you were addressing was the time at which the object might be thought to have left Bolivia? DR YATES: None of those objects were recorded as having left in those expeditions. MR LANCASTER: Right. But is there not a possibility that associated with removal by expedition participants that other objects are taken and not recorded? DR YATES: I think that it's possible but unlikely. I don't know of any example of that. 322 The answer 'None of those objects were recorded as having left in those expeditions' seems to involve a transcription error as the next question shows. I have no independent recollection of this exchange but it seems to me that the answer was likely 'All of those objects were recorded as having left in those expeditions' for only by reading it that way does Mr Lancaster SC's next question make sense. 323 I do not think that Dr Yates is to be criticised for not mentioning these matters in her reports. In relation to her evidence in chief, she gave evidence about the looting in the late 1940s and 1950s. I do not see why in that report she was obliged to disclose these expeditions. Indeed, her cross-examination at T150-151 revealed that objects recovered by d'Orbigny and Créqui-Montfort were now in the Musée du Quai Branly in Paris. In relation to Uhle, it was unclear to me where the objects he had taken were: T161. But her evidence when finally challenged by the cross-examiner was that she thought that the objects taken in these expeditions had been recorded. Dr Yates to her credit conceded the possibility that there were objects taken which were not recorded but she described this as unlikely. 324 That being so, I can see no reason why these three expeditions had any relevance to her report in chief. In relation to her report in reply, Dr Young-Sánchez in her report did not mention the expeditions of d'Orbigny, Créqui-Montfort or Uhle (although she did mention the possibility of a 19th century traveller who may have taken artefacts that were not subsequently published: CB621) so there was no occasion for Dr Yates to deal with them in reply. It was of course entirely proper for the Applicant to explore with Dr Yates the implications of these expeditions but I do not accept that she can be criticised for not volunteering in her reports matters which appeared to her to have no relevance, more so where Dr Young-Sánchez herself had not identified them. 325 In relation to the other travellers who visited the site, the Applicant's submission was not accompanied by a transcript reference and I have been unable to locate where Dr Yates was examined about this. Travellers were not mentioned on the first day of the concurrent session but were mentioned four times on the second day. Dr Vranich mentioned the visit of 'singular traveller scholars' in the late 19th century and early 20th century at T163.2 and he later identified at T169.12 that beginning in the middle of the 19th century there were scholars 'or early travellers' that began coming to the area 'specifically purchasing objects for museum collections'. I will deal with his evidence about these a little later. The other references to 'travellers' were made by Counsel for the Commonwealth, Mr Johnson SC, and are not material to this issue. 326 The cross-examination of Dr Yates about pre-1906 removal begins at T143 and moved to the visits by archaeologists at T150. I have been unable to locate any point at which Dr Yates was asked about travellers (not being archaeologists) to Tiwanaku. Dr Yates was cross-examined as to whether a Samuel Mathewson Scott, a collector, visited the site in the 1890s at T161.25-26 but Dr Yates had never heard of him (T161.34) and the object which she was being asked about actually came from Peru: T161.41-46. Although Dr Vranich identified several additional persons who visited the site in the 19th century Dr Yates was not asked about any of these persons. As such, Dr Yates's views about the significance of visits to Tiwanaku by persons other than d'Orbigny, Uhle and Créqui-Montfort were never elicited. 327 It is true that Dr Yates was asked about 'visitors' at T162.31-33 and said in response that Dr Vranich would know more about them. However, returning to the criticism levelled at Dr Yates about this - that she had failed to disclose these matters in her report - I do not accept the criticism which seems to me entirely without substance. The only possibly relevant reference by Dr Young-Sánchez in her report to travellers or visitors in the context of a pre-1906 theory of removal was her contemplation at CB621 of the possibility of an unidentified traveller in the 19th or early 20th century, which itself appeared to be speculation. I struggle to see why Dr Yates can be criticised for not responding in her report to this especially where her evidence was that Dr Vranich knew more about these matters. 328 Dr Yates was also taken to task over the basalt Berlin object. It is not in dispute that it is Tiwanaku in nature; is made from basalt; is now in the Ethnological Museum of Berlin; first appeared in Puno in Peru in 1888 where it was purchased by a doctor; and that its provenance before 1888 is unknown. Dr Yates was cross-examined about this object from T143.41 onwards. 329 The point of this questioning was to win from Dr Yates a concession that Tiwanaku objects were removed from Bolivia prior to 1906 and that it was possible therefore that the Artefact had been removed from Bolivia prior to 1906. The thinking which underpinned this questioning was that the Berlin object had been removed before 1888 and this fact showed that it was possible that the Artefact too had been removed before 1906 in a similar fashion. Dr Yates did not dispute that the Berlin object had been removed from Bolivia (T145.36-44) and that it had first appeared in Puno in Peru in about 1888: T145.14. She also accepted that there were no documents or records which explained how it came to be there: T145.19. The Applicant submitted at ACS [56(e)] that she 'steadfastly refused' to accept that the existence of the Berlin object was evidence that unprovenanced objects left Bolivia before 1906. 330 I do not accept this criticism of her evidence. By the answers I have mentioned, it is apparent that she accepted that the Berlin object left Bolivia before 1906 and that prior to 1888 it was unprovenanced. What Dr Yates refused to accept, however, was the validity of the question which she was being asked. Her point was that objects removed prior to 1906 were all well-documented which, in her view, the Berlin object confirmed. This episode reflects Dr Yates and Dr Vranich's more general evidence that Tiwanaku objects removed before 1906 have all been documented. In any event, I do not accept the Applicant's criticism of Dr Yates's evidence about the Berlin object. 331 As noted above Dr Yates identified excavations carried out by Créqui-Montfort in 1903, d'Orbigny in the 1830s and Max Uhle in the 1890s. Dr Vranich identified other persons who visited the site as being Adolph Bandelier in 1893, an Argentinian doctor in 1867, Squier in 1863 and Arthur Posnansky in 1903. Of the Argentinian doctor all that is known is that he wrote a memoir in which he recounted walking in the Andes and that he went through Tiwanaku. The memoir made no mention of removing objects from Tiwanaku. Dr Vranich was asked whether it was within the realms of the possible that the Artefact was removed by the Argentinian doctor and responded that it was 'not outside the realms of - of impossibility': T163.33. I take this to be evidence that he thought it impossible. I would not go so far. Anything is possible including, as the evidence in the concurrent session suggests, that the Pumapunku was made by aliens. But I think it extremely unlikely that a man writing a memoir about walking in the Andes and passing through Tiwanaku would omit reference to the fact that he had found and taken the Artefact, particularly since he would have been thereafter encumbered with a 22 lb basalt object for the balance of his walking trip. I note that there was no evidence that the Argentinian doctor had been accompanied by a llama. 332 It is then necessary to resolve the central debate between Dr Young-Sánchez, on the one hand, and Drs Yates and Vranich, on the other. I am satisfied that many objects were removed from Tiwanaku between 1830 and 1906. The object purchased at Puno shows, as the Applicant correctly submitted, that at least one basalt object was removed from Bolivia in the 19th century for which no evidence exists explaining how it came to leave Tiwanaku. I am also satisfied that objects were removed from Tiwanaku during the course of the 20th century for which there are no complete or reliable provenance documents that explain how they came to be outside Bolivia. The evidence of Mr Condori suggests the presence of objects of this kind in the Museum of Ethnology in Buenos Aires which he thought 'enriched' by the excavations carried out by Dr Casanova in 1934. 333 The evidence of Dr Vranich and Dr Yates can reasonably support an inference that a significant proportion of the objects which were removed in unknown circumstances prior to 1906 subsequently became documented prior to that time. I draw that inference. No motive existed to conceal the existence of objects of this kind. 334 However, I do not think I can say that there were no Tiwanaku objects removed from Tiwanaku during the 19th century (including up to 1906) which had remained undocumented until 1906. In relation to that general proposition, I prefer the less doctrinaire position put forward by Dr Young-Sánchez at the opening of the discussion on this topic during the concurrent session. On the other hand, the evidence of Dr Yates and Dr Vranich can reasonably sustain the inference that it is unlikely that objects removed during the course of the 19th century and prior to 1906 remained undocumented until 1906. I draw that inference. 335 However, the question in the present case is not that general question. It is whether the Artefact was removed in this fashion. At this stage, I think one must bring to account some qualities of the Artefact which neither party disputed. The Artefact is large and heavy and made from basalt which has been polished. Its form is unprecedented and unique. Dr Vranich thought it a significant technical and artistic achievement. It is also, from a lay person's perspective, a striking piece. One must also bring to account the very small number of basalt objects which have been found (about a dozen according to Dr Vranich). In my view, these qualities make it much less likely that it would have remained undocumented during the course of the 19th century and prior to 1906. I find that the hypothesis that the Artefact was removed from Tiwanaku in this way is possible but unlikely.
Conclusions 336 The question then is whether the Commonwealth's two hypotheses taken together are more likely than all of the Applicant's hypotheses taken together. Leaving aside whether all of them were actually procedurally open to the Applicant to pursue, I regard all of the pre-Colonial Period hypotheses as each being very unlikely and, taken together, as being collectively very unlikely. The Colonial Period hypothesis is also very unlikely. On the other hand, as I have found, removal during the 19th century is possible although unlikely. Taking all of these hypotheses together, I consider the likelihood of any of them being correct as unlikely. 337 On the other hand, the Commonwealth's hypotheses have the advantage of being matched to evidence of actual events which are known to have occurred and to be consistent with the absence of any documentary trace of the Artefact before the 1950s. Under the Commonwealth's hypotheses the lack of provenance is not only readily explicable but obvious. Under the Applicant's various hypotheses, the lack of provenance must be seen as something of a fluke (although not impossible). 338 Having weighed them carefully on the available evidence I have concluded that the Commonwealth's hypothesis that the Artefact was removed from the ruins of Tiwanaku sometime between 1934 and the 1950s is not only more likely than all of the Applicant's various hypotheses combined but, in fact, much more so. 339 At various points in its submissions the Applicant made the point that the Commonwealth's case was built on speculation. In effect, it submitted that the very subject matter of the suit, an ancient object excavated by unknown persons at an unknown time and from an unknown location simply made it impossible for the civil standard to be satisfied. 340 I do not accept this submission. When the evidence is analysed closely it rises well beyond speculation. In particular, the Applicant chose to explore in detail the pre-1906 hypotheses and the result of that exercise is that I have concluded that removal before 1906 whilst possible is unlikely. Had that exercise not been undertaken so that the Court did not have the benefit of a body of expert evidence about the pre-1906 removal possibilities, I would likely have rejected the Commonwealth's case. Whilst I regard the hypotheses put forward by Dr Vranich and Dr Yates as quite likely I would not regard them together as being more likely than not if they are viewed in isolation from the rest of the evidence in the case. Put another way, were their evidence viewed entirely in isolation without any exploration of pre-1906 removal possibilities, I would not be able to find myself affirmatively satisfied that the Artefact was removed after 1906. Largely this would be because there would remain at least 1500 years of history in which literally almost anything could have happened. 341 However, once the Applicant made the forensic choice to explore that 1500 years of history to explain why removal before 1906 was possible, this altered the playing field. As I have explained above, it is a known fact that the Artefact was either removed before or after 1906. Thus the probability that it was removed before 1906 directly impacts on the probability that it was removed after 1906. The result of the Applicant's exploration of pre-1906 removal hypotheses is that I am affirmatively satisfied that the Artefact was not removed before 1906. Whilst that is sufficient to answer the actual question before the Court it has the further result of elevating the likelihood of the hypotheses advanced by the Commonwealth being correct. Thus whilst divorced from the rest of the evidence in the case I would not be affirmatively satisfied that the Artefact had been removed in either of the fashions suggested by Dr Vranich and Dr Yates, once the rest of the evidence is brought to account, I am. I find that the Artefact was removed from the ruins of Tiwanaku either by Dr Casanova in 1934 or by looters in or around 1950. 342 In effect, the complaint made by the Applicant can be made in any circumstantial case because in every such case what actually happened can never be directly known. I do not accept that it is open to object to a circumstantial case on the basis that it is necessarily speculative and I do not think that, by itself, the objection of speculation is an answer to what the Commonwealth submits. The law requires the circumstantial case (which is necessarily speculative) to be weighed against the known circumstances and the Court to ask whether the circumstantial case is more likely than not. A circumstantial case which fails is speculation but this is not so with one which succeeds. What divides the two is not the presence of speculation; it is satisfaction that the circumstances make the correctness of the speculation more likely than not. In a case where the proved circumstances raise a more probable inference in favour of the conclusion sought, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise: Palmer v Dolman [2005] NSWCA 361 at [35], quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5. This is such a case. 343 I find that the Artefact was made by the Tiwanaku at Tiwanaku and was unlawfully removed from the site after 1906. Within the meaning of the Act it is indeed part of the movable cultural heritage of Bolivia. It is necessary then to turn to the Applicant's legal contention that the Act does not apply to objects which were removed from the other country prior to its commencement on 1 July 1987 (noting that in this case it is clear that the Artefact had been removed to Argentina by the 1950s).
The second reading speech 365 Turning then to the Minister's second reading speech to the House of Representatives on 27 November 1985. The Applicant relies upon the following passage: Finally, let me stress that the Convention is not concerned with restitution of cultural property taken from this country in the past or brought here in past years from other countries without proper authority. The restitution of cultural property is the subject of other United Nations Educational, Scientific and Cultural Organisation efforts, but it is not the subject of the 1970 Convention or the purpose of this legislation. Rather, the concern is to draw a line across history to ensure that in future years transfers of important and valuable cultural objects from one country to another take place in a legal and orderly fashion and that sanctions imposed will discourage illicit trafficking in cultural material. 366 The Applicant submits, and I agree, that the Government intended both the import and the export provisions 'to draw a line across history to ensure that in future years transfers of important and valuable cultural objects from one country to another take place in a legal and orderly fashion'. The word 'transfers' rather suggests that the acts of importation and exportation have a connection with each other so that between them they constitute a transfer. 367 The question which then arises is where that line was drawn. Was it, as the Applicant submits, a line which exempted from the operation of the Act any object which had already been exported from its country of origin so that such objects were able to be imported into Australia without the risk of forfeiture under s 14(1)? Or was it a line applying to transfers which resulted in importation into Australia on or after 1 July 1987? Or was it instead, as the Commonwealth submits, a line which exempted from the operation of the Act only any object which had already been imported into Australia? 368 In answering these rhetorical questions, the Applicant places particular reliance on the Minister's statement that the purpose of the line thus drawn was to ensure that in future years 'transfers of important and valuable cultural objects from one country to another' would take place in a legal and orderly fashion. It submits that the word 'transfer' encompasses both imports and exports. By so doing the Applicant atomises the concept of a transfer into two constituent acts. On this view, the line therefore contemplated was one which on 1 July 1987 divided history into a future consisting of imports and exports to which the Act applied and a past to which it did not. For myself, I would not atomise the word 'transfers' in this way. The Act requires an importation on or after 1 July 1987 and the secondary material supports the idea that the transfer must be completed on or after 1 July 1987. This says very little about the time of export contemplated by the Act. On the other hand, I do not accept the Commonwealth's submission that the line mentioned by the Minister was intended by him to be drawn only by reference to importation. This disregards his use of the word 'transfers'. 369 I would not describe the second reading speech as a powerful interpretative tool in this context. Once one is seeking to construe the word used by a Minister in a second reading speech ('transfer') effectively as if the second reading speech was itself a statute one has strayed from the kind of clarity which is usually useful for interpreting a statute. At best I would say that the Minister's speech is probably more consistent with the Applicant's submission than it is with the Commonwealth's. 370 I therefore accept that the second reading speech provides some support, limited perhaps, for the Applicant's contention that s 14(1)(a) was not intended to catch exports of protected goods which had occurred before 1 July 1987. 371 Also relevant in the Minister's speech is this passage: The import controls will apply only to important cultural material which has been imported into Australia without the requisite export authorisation from the country of origin. There will be no search of incoming luggage or freight. The import controls exist solely to enable Australia to respond if an official complaint is received from a foreign government that an illegally exported object has been brought to Australia. If a foreign government does not consider an object sufficiently important to lodge such a complaint, we do not consider ourselves as having an obligation to protect that country's cultural property on its behalf. Although these controls relate essentially to Australia's treaty obligations under the 1970 Convention, they will also make it possible for the Government to provide this form of protection to countries which may not yet be party to the Convention. An institution or individual buying an important cultural object from overseas will need to be satisfied that the requisite export authorisations have been issued in the country of origin. This is already the practice of all reputable collecting institutions and private collectors. In any case the interests of innocent third parties are safeguarded by the 1970 Convention. A country requesting the return of an object is required by the Convention to offer financial compensation to an innocent third party purchaser. 372 From this I would infer that the Government's intention in introducing the Act was to give effect to the obligations Australia would have under the Convention once it acceded to it. As the Minister's speech also explained, the Government had announced its intention to accede to the Convention in October 1983 and the passage of the Act was intended 'to put us in the position to do this'. From this one may infer that the import control provisions of the Act were intended to provide a regime which was, at least, consistent with the Convention. It is equally clear that the Government intended to go beyond the terms of the Convention by extending the import controls to imports from countries which had not acceded to the Convention.
The Convention 373 The Government's intention that the import controls would be consistent with the Convention makes it rational to inquire into what the Convention required. The relevant provision is Article 7: Article 7 The States Parties to this Convention undertake: (a) to take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned. Whenever possible, to inform a State of origin Party to this Convention of an offer of such cultural property illegally removed from that State after the entry into force of this Convention in both States; (b) (i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to this Convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution; (ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property. Requests for recovery and return shall be made through diplomatic offices. The requesting Party shall furnish, at its expense, the documentation and other evidence necessary to establish its claim for recovery and return. The Parties shall impose no customs duties or other charges upon cultural property returned pursuant to this Article. All expenses incident to the return and delivery of the cultural property shall be borne by the requesting Party. 374 There are two significant differences between s 14(1) and Art 7. First, Art 7 is concerned with the position of 'museums and similar institutions' whereas s 14(1) is much broader and applies to any importer. Secondly, Art 7(b)(ii) only applies where the importation of the cultural property occurs after the entry into force of the Convention in the States Parties concerned. This would appear to draw a line under the operation of the Convention at least in so far as Australia is concerned at 30 January 1990 when Australia acceded to the Convention. By contrast, the proscription of importation in s 14(1) is not linked to Australia's accession to the Convention and clearly applied from 1 July 1987, regardless of the temporal characteristics required of the export by s 14(1)(a). 375 In my view, the differences between Art 7 and s 14(1) are too large to make comparison useful. The terms of the Convention and the Act persuade me that the Parliament was seeking to put in place a regime dealing with the import and export of items of cultural heritage which was not connected to the operation of the Convention. Whilst I accept that the Minister's speech said that it was intended that the Act would be sufficiently consistent with the Convention to ensure that Australia would be complying with its obligations under the Convention were it to accede to it, I think this would only be useful from an interpretative perspective if one could show that a particular construction of s 14(1)(a) would be likely to result in Australia breaching the Convention's terms. Neither party in this case submitted that the other's construction would result in such a breach. As such, I do not think that the Convention is of assistance in determining what s 14(1)(a) requires for its satisfaction.
The explanatory memorandum 376 The explanatory memorandum is of little interpretative assistance and, in any event, less so than the second reading speech.
Conclusions on secondary materials 377 The second reading speech provides some support for a construction of s 14(1)(a) in which the act of exportation must either: (i) occur on or after the commencement of the Act on 1 July 1987 (the Applicant's position); or (ii) be sufficiently connected with an act of importation (itself occurring on or after 1 July 1987) such that together they constitute a 'transfer'. It does not support the Commonwealth's construction that s 14(1)(a) also applies to any export of an object which occurred before 1 July 1987.
Conclusions on construction of s 14(1)(a) 378 I do not accept the Commonwealth's submission which renders the use of the present perfect tense otiose. As between the Applicant's construction and the other construction I have mentioned (which requires the export to be sufficiently connected to an import occurring on or after 1 July 1987 such that together they constitute a 'transfer'), it is not necessary to choose on the facts of this case. The Artefact had been exported from Bolivia by no later than the 1950s and the Applicant's importation of it into Australia has no connection with the circumstances under which it made its way from Tiwanaku to Mr Osona's collection in Buenos Aires.
The decision in R v Heller, Zango and Kassam (1983) 27 Alta LR (2d) 346 379 The Applicant drew to my attention this decision and submitted that it provided some support for its construction of s 14(1)(a). In that case the Provincial Court of Alberta (as the Alberta Court of Justice then was) was called on to construe s 31(2) of the Cultural Property Export and Import Act 1975 (Can) which provided that 'From and after the coming into force of a cultural property agreement in Canada and a reciprocating State, it is illegal to import into Canada any foreign cultural property that has been illegally exported from that reciprocating State'. This was held to require that the illegal export had to occur after Canada had entered into the relevant international convention. As I have already explained, the Act commenced and had effect prior to Australia's accession to the Convention. I do not think that this case throws any light on the correct approach to s 14(1).
Conclusion 380 Since it is not in dispute that the Artefact had been exported from Bolivia by the 1950s and that the act of importation was entirely disconnected from the act of exportation it follows that s 14(1) cannot apply to it. The Applicant is therefore entitled to succeed.
Palmanova Pty Ltd
Commonwealth of Australia
[2004] HCA 34
(1951) 217 ALR 1
(1938) 60 CLR 336
(1905) 2 CLR 405
(1956) 94 CLR 470
(1936) 55 CLR 367