Daniel v State of Western Australia [2000] FCA 1334

FEDERAL COURT OF AUSTRALIA

Daniels v State of Western Australia [2000] FCA 1334 NATIVE TITLE – evidence – objections on grounds of hearsay and opinion - rulings

Evidence Act 1995 (Cth) ss 63, 67, 76, 80, 81, 135 and 136 Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, applied Ward on behalf of the Miriuwung & Gajerrong People v State of Western Australia (1998) 159 ALR 483, referred to State of Western Australia v Ward [2000] FCA 191, referred to Daniels v State of Western Australia [2000] FCA 858, followed 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 19 SEPTEMBER 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: 19 SEPTEMBER 2000

PLACE: PERTH

REASONS FOR RULINGS 1 On 26 June 2000 I gave reasons in respect of certain objections raised in the course of the hearing. In the course of those reasons I set out what I consider to be the proper approach to opinion evidence. This involved a consideration of the application of ss 55(1), 56, 59, 60, 76, 79, 135 and 136 of the Evidence Act. 2 At the conclusion of those reasons under the heading "Manner in which evidence should proceed" I indicated that the matter should now proceed as follows: 1. The question directed to ascertaining the expert witness' opinion should be put and the response received by the Court subject to the objections which have been made to it. 2. Examination and cross-examination should explore the factual base of the opinion to enable the Court to make a finding whether the opinion is wholly or substantially based on the specialised knowledge of the expert based on his training, study or experience. 3. The hearsay evidence in the expert's report, when tendered, will be relevant evidence to enable the Court to make the finding referred to in 2. 4. Opportunity will be given to counsel to have the hearsay evidence so admitted limited until that purpose is determined. 5. Following the making of the finding the Court will consider whether admission of any of the hearsay evidence should be refused. 3 Those steps have now been taken. Additionally, I have received written submissions on the matters in evidence to which objection is taken on grounds relating either to hearsay and/or opinion. 4 My rulings in respect of those objections follow below. In making those rulings I have applied the understanding of the law which I expressed in my reasons of 26 June 2000. 5 In many instances objections are not upheld. However, matters raised in relation to the evidence are, in many of those cases, issues which will go to the weight of the evidence.