consideration
8 The issue is that identified in [1] of these reasons. Senior counsel for the first and fifth respondents submitted that the proposed evidence should not be admitted by reason of s 135(a) and by reason of s 135(c) of the Evidence Act. Section 135 provides:
'The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.'
Alternatively, as emerged in the course of submissions, it was contended that the proposed evidence should be received but the use to which it should be put be limited, so as to avoid the danger of unfair prejudice to the respondents. The power to make such an order appears in s 136 of the Evidence Act, which provides:
'The court may limit the use to be made of evidence if there is danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.'
9 To rule upon the issue it is necessary to identify the purpose for which the evidence is adduced. As is apparent from the report of Professor Morphy, he was asked specifically to provide a response to theoretical anthropological issues raised by the anthropologist's report of Professor Maddock which is dated June 2002. The first respondent intends to adduce the evidence of Professor Maddock, removing from it significant portions for reasons to which I do not need to refer in detail. Professor Maddock is now deceased.
10 In my view the purpose of the proposed evidence indicates that it is relevant. The content of the report of Professor Morphy is in a general sense admissible, that is, without referring to specific parts of the report which might attract specific contentions as to their admissibility, the way in which it is expressed is generally in an admissible form of opinion evidence in relation to some of the matters to which Professor Maddock refers: see ss 76(1) and 79 of the Evidence Act.
11 I observe that the High Court in Papakosmas v The Queen (1999) 196 CLR 297 (per Gleeson CJ and Hayne J at 308 with whom Gaudron and Kirby J agreed at 311 on the issue, and per McHugh J at 325-328) referred with approval to the consideration given to ss 135 and 136 of the Evidence Act by the Court of Criminal Appeal of New South Wales in BD (1997) 94 A Crim R 131 at 139. One aspect of unfair prejudice may be the lack of a proper opportunity to cross-examine the person whose evidence is sought to be admitted: see Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 949 per Nicholson J at [10]; Commonwealth of Australia v McLean (1996) 41 NSWLR 389; Odgers 'Uniform Evidence Law', 5ed, Lawbook Co. 2002 at 440 and cases cited at fn 517. More generally, the way in which the trial has been conducted may be a factor relevant to determining whether there is a danger of unfair prejudice to a party by the admission of evidence: Daniel v State of Western Australia [2001] FCA 223 per Nicholson J at [18].
12 I turn to consider two questions. The first is whether it is shown that s 135(a) applies, that is, that the proposed evidence having regard to its probative value should not be permitted because it is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondents, or to one or more of them. The second is whether it is shown that 135(c) applies, that is, that the proposed evidence, having regard to its probative value, should not be permitted because it is substantially outweighed by the danger that the evidence might cause or result in undue waste of time. If one or other of those matters is made out, then I have a discretion to refuse to admit the proposed evidence.
13 As to the question of unfair prejudice, (I interpose by saying that I am using that term as a shorthand expression to reflect the issue to which s 135 directs attention, namely the danger that the proposed evidence might be unfairly prejudicial to a party), as one of the matters to be weighed, I have regard to the following matters.
14 The report of Professor Morphy is belated; that is not contested by the first applicants. It is so belated that, even if it were to be received in evidence, it would be unfair to the respondents to expect them to cross-examine Professor Morphy at present. Indeed, I also accept that, subject to considering one argument advanced on behalf of the first applicants, if that report were to be received in evidence, fairness would dictate that the respondents be given the opportunity to consult with other anthropologists to determine whether they wished to dispute his evidence and if so in what manner, and possibly to adduce further evidence themselves through another anthropologist. I observe that it was not the contemplation of the orders made for the filing and service of supplementary anthropological reports that they should be reports from anthropologists who had not previously provided reports in the proceedings. I therefore accept, subject to the argument with which I will shortly deal, that the consequence, if the proposed evidence is admitted, is that the respondents will need time to consider it, to consult with other anthropologists, to prepare cross-examination and possibly to adduce further evidence.
15 The admission of the evidence of Professor Morphy will therefore result in the trial being further delayed. It would not be possible to do other than to receive the evidence-in-chief of Professor Morphy at this time. That delay must be seen in the context that this trial has proceeded through a series of tranches of evidence, the last being in July 2003. The present period of time for evidence is to complete the evidence of the first and fifth respondents. It is then contemplated that there will be a time for the preparation of written submissions and then oral submissions to complete the hearing. The delay which will be caused by the admission of the evidence will, I think, be a delay of some two to three months while the respondents are given the opportunity to address the matters which they say they would wish to address. That will in turn push out the completion of submissions for a significant period of further delay.
16 Delay of itself is rarely sufficient to establish unfair prejudice. However, the delay in the present circumstances has a different flavour given the course of the matter to date. The proposed evidence also has a particular significance having regard to the attitude of the first respondent, which proposes to adduce the report of Professor Maddock, that if the proposed evidence is to be received to respond to Professor Maddock, then the first respondent will not seek to rely upon (or read as part of his evidence) significant and extensive passages of Professor Maddock's report. They will be withdrawn from the proposed tender of Professor Maddock's report rather than the first respondent being exposed to the consequences of a further lengthy delay in the hearing of the matter. In other words, the consequence of the balancing of adverse outcomes of further delay on the one hand and the admission of much of Professor Maddock's report on the other will lead the first respondent to substantially reduce the evidence which it proposes to adduce at the trial of this action rather than to have the evidence process further prolonged.
17 The argument advanced by senior counsel for the first applicants to which I need to refer is that the respondents, by virtue of Professor Rigsby's report, have been on notice that the first applicants proposed to adduce evidence such as that now contained in Professor Morphy's report in any event, at least since June 2003. It is further argued that the respondents should be in a position to proceed with his cross-examination and with any controverting expert anthropological evidence if Professor Morphy's evidence were admitted. I do not accept that submission. As I have noted there were reasons to which I do not need to refer in detail as to why Professor Rigsby was not presented to give evidence during the last tranche of evidence in July 2003, and why his report in the form in which it is expressed (now MFI.L196) was not presented as part of the first applicant's evidence during that tranche of evidence. It was unclear at the completion of the hearing on 23 July 2003 whether further expert evidence would be sought to be adduced by the first applicants. In those circumstances, I do not think it was incumbent upon the respondents to anticipate a report in the terms of Professor Morphy's report, and therefore to consult with anthropologists prior to the present hearing in the light of some possibility to that effect.
18 Accordingly, having regard to the course of the evidence in this matter, the orders for the sequence of filing expert evidence and expert supplementary evidence, in my view this is a case where there is a danger that the admission of the evidence of Professor Morphy might be unfairly prejudicial to the respondents, in particular to the first respondent. That of course does not mean that his evidence should not be admitted, but I think in the circumstances the proposed evidence does fall within the description to which s 135(a) refers.
19 I do not accept the further submission put on behalf of the fifth respondent that there is a danger that Professor Morphy's proposed evidence might be unfairly prejudicial because the lay evidence has been given without the benefit of knowing Professor Morphy's views and that the lay evidence might otherwise have been cross-examined differently. I do not accept that contention because, in the timetable which was fixed, most of the lay evidence was given prior to the time for the closure of supplementary expert opinion evidence. Until that time, views such as those of Professor Morphy might have been expressed either by Professor Merlan or by Mr Graham. In addition, the content of Professor Morphy's report does not clearly impress me as material upon which cross-examination of any of the lay witnesses would have been undertaken. That is not to reject the possibility that may have occurred, but simply to indicate that I am not persuaded that there is a danger of unfair prejudice to the respondents in the present circumstances on that score.
20 The alternative limb to s 135 to which I must refer is s 135(c), that is whether there is a danger that the proposed evidence might cause or result in undue waste of time. I have reached the view that the proposed evidence does not fall within that category. In reaching that view I have not taken into account the consequences of admitting the evidence namely, the course of the trial and the course of evidence would be delayed. I have taken that factor into account in determining the danger of the existence of unfair prejudice. I have therefore addressed s 135(c) by reference to the content of Professor Morphy's report and what might be required to address it, assuming proper preparation time had been available to the respondents.
21 Professor Morphy's report touches upon three theoretical issues apparently addressed by Professor Maddock. The issues are theoretical in the sense that they relate to how anthropologists generally understand and use certain terms, rather than how such terms should specifically be applied to the first applicants as a native title claim group. Professor Morphy did not claim to have undertaken a particular study of, or to have a specific knowledge of, those issues or terms in relation to the first applicants. Senior counsel for the first applicants referred to the three issues as discontinuity, tribe/language group issue, and local organisation issues. More generally, he indicated that those three issues really fell within the general rubric of the concept of discontinuity. In my judgment, they are theoretical issues which, if the opportunity were given to take instructions with respect to them, could be reasonably readily cross-examined upon.
22 There are certain aspects of the report of Professor Morphy which attract particular objections. Those passages would need to be the subject to rulings as to their admissibility. The foreshadowed objections arise because of the way in which certain matters are expressed in the report, or because there are no specified sources for assertions made in the report, or in some few cases by virtue of the references which are there made. The foreshadowed objections are not very great in number and I do not think addressing them, assuming proper preparation time were available, would take very long.
23 Upon the narrow view of the scope of s 135(c) which I have taken as to what 'undue waste of time' means in the present circumstances (and I take that view because the delay in the course of the hearing is a matter I have taken into account under s 135(a)), I am not satisfied that there is a danger that the proposed evidence, if admitted, might cause or result in undue waste of time.
24 I turn then to consider the balancing exercise which s 135 requires. I may refuse to admit the evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. That requires consideration of its probative value. In that regard I note the following matters:
25 As Professor Morphy says (at par 4 of his report), he does not profess to be an expert on Larrakia ethnography. He has not undertaken any research of his own with Larrakia people. To the extent to which his report specifically refers to matters concerning the Larrakia people, or this particular claim for determination of native title, it must be seen in the context of his instructions to respond to theoretical anthropological issues only, and his acknowledgement of the state of his expertise and learning.
26 Secondly, I accept the submission that to a large measure, but not entirely, his report can be put by way of argument in final submissions. It is not all his report that falls within that character. But arguments as to the meaning of discontinuity and the like are arguments which, as senior counsel for the first applicants acknowledged, are arguments related to the expressions 'change' and 'adaptation' used by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 77 ALJR 356 (Yorta Yorta). The precise facts in this matter on such topics will need to be addressed in the light of what the High Court has said in Western Australia v Ward [2002] HCA 28; (2002) 76 ALJR 1098. I therefore take into account that significant parts of what Professor Morphy says, as I read, it, can be put by way of submission on those issues.
27 Thirdly, I note that senior counsel for the first respondent, which proposes to adduce Professor Maddock's report into evidence accepts that Professor Maddock, in using the term 'discontinuity' or words like that, is using them not in any specialised anthropological sense, but in their everyday lay sense. Consequently, those words in his report will be read in that way. Professor Morphy's, if it is an expert response about the lay meaning of particular words (as to which see e.g. Pepsi Seven-up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 per Hill J at 299-300; Dyson v Pharmacy Board [2000] NSWSC 981; (2000) 50 NSWLR 523; per Austin J at [23]-[41]) could not carry much weight. If his response is an expert opinion about the anthropological meaning and use of certain concepts or words which are said to be relevant to the proper understanding of the High Court decisions to which I have referred, or are by way of response to Professor Maddock, again the proposed evidence cannot be of much weight. The High Court's expressions of words like 'change' and 'adaptation' are not used as words of peculiar anthropological significance remote from the non-anthropologist's undertaking. As a response to Professor Maddock, who is acknowledged not to be using those words or concepts in a specialised anthropological sense, the proposed evidence also therefore is not of great weight.
28 Fourthly, I note that it is not submitted that the words 'discontinuity' or 'tribe/language group' or 'local organisation' are words which are used in the Native Title Act 1993 (Cth) as having a particular and specialised meaning. They are not words which appear in s 223 of that Act, or so far as I am aware specifically in any other section of that Act and which require construction as part of the resolution of the present application: cf Northern Land Council v Olney (1992) 34 FCR 470. They are words used developing upon concepts expressed by the High Court in a series of cases, including the two to which I have specifically referred.
29 Fifthly, I have had regard to the fact that there are parts of Professor Morphy's report which, as I have said in discussing s 135(c), in their present form would not carry much weight because of the absence of sources for the matters upon which are there asserted. They are not many, but there are some. This is not a matter of much significance in the scales.
30 The report of Professor Morphy, therefore, whilst relevant and in a general sense admissible to issues arising in the proceeding, and possibly relevant in the attribution of the weight to be given to the report of Professor Maddock, is not one which deals specifically with the issues which concern the present native title determination application of the first applicants and the third applicants. It is in the nature of a report dealing in a theoretical way with how anthropologists, or some anthropologists, use words or concepts which themselves arise from certain High Court decisions.
31 Those matters I take into account in balancing the probative value of the proposed evidence against the danger that the proposed evidence might be unfairly prejudicial to a party or parties. However, the balancing exercise required by s 135 involves weighing that probative value against the danger of unfair prejudice, but s 135 empowers the Court to refuse to admit the proposed evidence only if the danger of unfair prejudice substantially outweighs the probative value of the proposed evidence.
32 Having regard to the considerations I have addressed, I have come to the view that the probative value of the proposed evidence is substantially outweighed by the danger that the proposed evidence might be unfairly prejudicial to the respondents. I therefore have a discretion under s 135 to refuse to admit the proposed evidence generally. In exercising that discretion, I have also had regard to the fact that Mr Graham, the anthropologist principally called by the first applicants, did file and serve a supplementary report. In his supplementary report, he was asked to, and did, address Professor Maddock's report. It was specifically part of his instruction for his supplementary report as appears in the instruction given to Mr Graham for his supplementary report (part of exhibit L181 pars 3(e) and 4(d)).
33 For those reasons, I refuse to admit the evidence of Professor Morphy in his report of September 2003 generally in the proceeding. In exercise of the power under s 136, I propose however to admit the evidence for a limited purpose. Professor Maddock is deceased. His views cannot be tested by cross-examination. To an extent, his views have been explored by Mr Graham. I will weigh his evidence in the light of what Mr Graham has said about Professor Maddock's views. But a cross-examiner may cross-examine from material which is not itself proposed to be put into evidence. In this instance the first applicants do not have the opportunity to cross-examine Professor Maddock. In my view Professor Morphy's report does provide material from which it might be seen that there are significant matters which may have been put to Professor Maddock and which may go to the weight to be attributed to Professor Maddock's views. Senior counsel for the first applicants contended, as a fall back position, that I should receive Professor Morphy's report for that limited purpose. Senior counsel for the first and fifth respondents acceded to the view that the proposed evidence might be admitted for that limited purpose without the danger of causing unfair prejudice to their respective parties. They indicated that if the proposed evidence were admitted for that limited purpose, they would not need to cross-examine Professor Morphy and so the course of the evidence would not be delayed.
34 Notwithstanding the view I have taken about the non-receipt of Professor Morphy's report under s 135 as evidence generally in the case, provided of course he is prepared to adopt his report or it is received now by consent, I will receive his report but limit the use to be made of that evidence pursuant to s 136 of the Evidence Act as being material which is available to the first applicants from a qualified anthropologist and which may have been used to cross-examine Professor Maddock were he available to be cross-examined. It will therefore be available to the first applicants to make submissions that they would have cross-examined Professor Maddock on these topics. What Professor Maddock may have said in response to them is of course speculative, but the fact of the availability of specific matters for cross-examination as distinct from the general entitlement to cross-examination in my view is material which can be relevant to assessing the weight to be attributed to Professor Maddock's views.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.