Daniel v State of Western Australia [2000] FCA 413

FEDERAL COURT OF AUSTRALIA

Daniels v State of Western Australia [2000] FCA 413

NATIVE TITLE – admissibility of signs – applicability of hearsay rule - whether exception to hearsay rule – whether admissions against interest – whether reasonably practicable to call witness – whether business records, tags or labels – use for non-hearsay purpose.

NATIVE TITLE – admissibility of video extracts – whether exception to hearsay rule – whether unfairly prejudicial or misleading and confusing. Evidence Act 1995 (Cth) ss 59(1), 63, 64, 69, 70, 81, 82, 87, 88, 135 Ward v Western Australia (1998) 159 ALR 483, considered Yanner v Easton (1999) 166 ALR 258, applied DANIELS & OTHERS FOR THE NGARLUMA PEOPLE, MONADEE & OTHERS FOR THE YINDJIBARNDI PEOPLE, HOLBOROW (NEE COSMOS) & OTHERS FOR THE YABURARA & MARDUDHUNERA PEOPLES AND DALE & OTHERS FOR THE WONG-GOO-TT-OO PEOPLE v THE STATE OF WESTERN AUSTRALIA & OTHERS WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998

R D NICHOLSON J

4 APRIL 2000 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6017 OF 1996

and part of WAG 127 of 1997

and part of WAG 6256 of 1998

BETWEEN: DANIELS & OTHERS FOR THE NGARLUMA PEOPLE AND MONADEE & OTHERS FOR THE YINDJIBARNDI PEOPLE

First Applicants

HOLBOROW (NEE COSMOS) & OTHERS FOR THE YABURARA & MARDUDHUNERA PEOPLES

Second Applicants

DALE & OTHERS FOR THE WONG-GOO-TT-OO PEOPLE

Third Applicants

AND: THE STATE OF WESTERN AUSTRALIA & OTHERS

Respondents

JUDGE: R D NICHOLSON J

DATE: 4 APRIL 2000

PLACE: PERTH

RULINGS ON EVIDENCE 1 The first respondents brought a notice of motion in which it was sought to have the first applicants' amended application for a native title determination struck out pursuant to s 84C(1) of the Native Title Act 1993 (Cth) as amended("the NT Act") for failure to comply with s 61(1) of the NT Act. Although dated 31 August 1999, the motion was not brought as an application until 19 November 1999 and this course was not objected to by any party: cf s 84C(2) of the NT Act. After time was allowed for written submissions, which had not been completed, this application was dismissed by consent on 24 March 2000. 2 The same notice of motion also sought an order that the first applicants specify the material facts relied upon in respect of their assertion that ss 47A and B of the NT Act apply in these proceedings. However, that aspect of the motion has also been dismissed by consent. 3 The first respondents are also contesting the admissibility of notices on display at Millstream Homestead, a heritage building in the Chichester Millstream National Park in the Pilbara region. 4 Additionally, the first respondents have objected to the tendering of a video tape called "Exile and the Kingdom" and in particular portions of the video which, it is asserted, have little probative value and risk being unfairly prejudicial, misleading or confusing and cause undue waste of time: s 135 of the Evidence Act 1995 (Cth).