Harrington-Smith on behalf of The Wongatha People v State of Western Australia (No 4) [2003] FCA 17

FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of The Wongatha People v State of

Western Australia (No 4) [2003] FCA 17

EVIDENCE – hearsay – old photographs - taker of photographs deceased – representations by him heard by his daughter as to taking of photographs and their subject matter – attempt to lead hearsay evidence from daughter on those matters – failure of party tendering photographs to give notice of intention to adduce such hearsay evidence – whether direction should be made that exclusion of hearsay rule still applies – exercise of discretion – whether other parties prejudiced by loss of opportunity to cross-examine other witnesses who had left the witness box. Evidence Act 1995 (Cth) ss 59, 63, 67 Evidence Regulations (Cth) cl 4 Federal Court Rules O 33 r 16, Form 144

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS

ON BEHALF OF THE WONGATHA PEOPLE v THE STATE OF

WESTERN AUSTRALIA & ORS

WAG 6005 OF 1998 LINDGREN J 20 JANUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6005 OF 1998

BETWEEN: RON HARRINGTON-SMITH, LEO THOMAS,

CYRIL BARNES & OTHERS ON BEHALF OF THE

WONGATHA PEOPLE

APPLICANTS

AND: THE STATE OF WESTERN AUSTRALIA & OTHERS

RESPONDENTS

JUDGE: LINDGREN J

DATE OF ORDER: 20 JANUARY 2003

WHERE MADE: SYDNEY

THE COURT DIRECTS THAT: 1. Subsection 63(2)(a) of the Evidence Act 1995 (Cth) apply in respect of the testimony given by Margaret Morgan on 28 November 2002 of oral representations made by her late father, Rod Schenk, as to the circumstances of his taking of photographs 4A, 4B, 4C and 4D (Eras 1 and 2) in Exhibit A79 and as to the content of those four photographs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.