Daniel v State of Western Australia [2000] FCA 1356

FEDERAL COURT OF AUSTRALIA

Daniels v State of Western Australia [2000] FCA 1356

NATIVE TITLE – evidence – objections on grounds of hearsay and irrelevance – expert evidence of third applicants – particularisation of general ruling

Evidence Act 1995 (Cth), s 136

Quick v Stoland Pty Ltd (1998) 157 ALR 615, 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 21 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: 21 SEPTEMBER 2000

PLACE: PERTH

REASONS FOR RULINGS 1 On 6 July 2000 (see transcript 5954-5956) I gave a general ruling in respect of reports of the expert anthropologist witness, Mr Rory O'Connor. Those reports appear in two volumes together with a supplementary report. 2 The ruling given on 6 July 2000 followed an earlier ruling given on 26 June 2000. The reasoning in that ruling was not challenged in the submissions in respect of the reports of Mr O'Connor. It was contended only that the reasoning should be differently applied. I therefore proceed on the basis of the understanding of the law which I set out in my reasons of 26 June 2000. I also relied on the same reasons in rulings which I gave on 19 September 2000 in respect of objections made on behalf of a number of the respondents. 3 In the ruling given on 6 July 2000 I concluded generally that there was a danger that a particular use of the evidence in the reports of Mr O'Connor, being the evidence that is subject of the objections, might be unfairly prejudicial to the parties making or supporting the objections. I therefore ordered that the use of such evidence be limited pursuant to s 136 of the Evidence Act 1995 (Cth) to the application of s 79 of the that Act in relation to the report of the expert: See Quick v Stoland Pty Ltd (1998) 157 ALR 615 as considered in my reasons of 26 June 2000. 4 However, I said that the objections as submitted in writing had overstated the deletions required. Opportunity was therefore given to counsel for the objectors to mark on the exhibited copies of the expert report the passages which should be the subject of the limited usage. It is not proved possible for these to be agreed between the respondent objectors and the third applicants. 5 It is therefore necessary for me to consider the application of the general ruling made on 6 July 2000 to the particular pieces of evidence and to determine whether any of those pieces of evidence should be excluded from the scope of the general ruling. 6 Having done so, I find that there are a very limited number of instances where I consider that the effect of the general ruling should be further restricted. My reasons in respect of each of the pieces of evidence are as follows: VOL 1 (3/M(1)) PAGE PASSAGE OBJECTOR i " Don, who had spent… 1st App With another one commenced" Hearsay and irrelevant. Admissible under s 60 for the purposed applying s 79. Danger other uses of evidence re Fred Hicks would be unfairly prejudicial. Limited under s 136 to purpose of testing foundation of specialised knowledge: s 79 8-9 "It was in response….. 1st Resp are relevant to this report" Limited usage conceded. 9 "The payment…involved" 1st App; 1st Resp Limited usage conceded. 10 entire page 1st App; 1st Resp Limited usage conceded. 11 entire page 1st App; 1st Resp Limited usage conceded. 19-33 entire 15 pages 1st App; 1st Resp Limited usage conceded. 44 "In Western Australia..submission" 1st Resp Deletion conceded. 63 "3.3….nineteen-thirties" 1st App Excluded from order applying s 136 limitation. 63 entire second paragraph 1st App; 1st Resp Danger evidence would be unfairly prejudicial. Limited under s 136 to s 79 purpose. 64-68 entire 5 pages 1st App Danger would be unfairly prejudicial on issue of great centrality. Limited under s 136 to s 79 purpose. 65 "Diamond and Bertie…Karratha" 1st Resp See 64 – 68. 66 "Wilfred….'settlements" 1st Resp See 64 – 68. 67-68 entire 2 pages 1st Resp See 64 – 68. 75-76 "in this regard…survived them" 1st Resp "The transfer….survived them" 1st App No evidence making the methodology of transfer relevant. Danger use of evidence would be unfairly prejudicial. Limited under s 136 to s 79 purpose. 77 "The fiction….this report" 1st App