The Larrakia People v Northern Territory [2003] FCA 1175

FEDERAL COURT OF AUSTRALIA

The Larrakia People v Northern Territory [2003] FCA 1175 Evidence Act 1995 (Cth) ss 135, 136 Native Title Act 1993 (Cth) Papakosmas v The Queen (1999) 196 CLR 297 cited BD (1997) 94 A Crim R 131 cited Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 949 cited Commonwealth of Australia v McLean (1996) 41 NSWLR 389 cited Daniel v State of Western Australia [2001] FCA 233 cited Western Australia v Ward [2002] HCA 28; (2002) 76 ALJR 1098 cited Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 77 ALJR 356 cited Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 cited Dyson v Pharmacy Board of New South Wales [2000] NSWSC 981; (2000) 50 NSWLR 523 cited Northern Land Council v Olney (1992) 34 FCR 470 cited Odgers 'Uniform Evidence Law', 5ed, Lawbook Co. 2002 at 440 THE LARRAKIA PEOPLE AND THE QUALL APPLICANTS v NORTHERN TERRITORY OF AUSTRALIA, DARWIN CITY COUNCIL & AMATEUR FISHERMEN'S ASSOCIATION OF THE NORTHERN TERRITORY D 6033 of 2001 MANSFIELD J 17 SEPTEMBER 2003 DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 6033 OF 2001

BETWEEN: THE LARRAKIA PEOPLE

FIRST APPLICANTS

THE QUALL APPLICANTS

SECOND APPLICANTS

AND: NORTHERN TERRITORY

FIRST RESPONDENT

DARWIN CITY COUNCIL

FIFTH RESPONDENT

AMATEUR FISHERMEN'S ASSOCIATION OF THE NORTHERN TERRITORY

SIXTH RESPONDENT

JUDGE: MANSFIELD J

DATE: 17 SEPTEMBER 2003

PLACE: ADELAIDE

REASONS FOR RULING 1 The issue upon which I am presently asked to rule is whether an order should be made under s 135 of the Evidence Act 1995 (Cth) (the Evidence Act) refusing to admit evidence of Professor Howard Morphy in the terms contained in his report of September 2003, and alternatively whether I should admit that evidence but limit its use under s 136 of the Evidence Act. Both the first and the fifth respondents have submitted that I should refuse to receive that evidence in its entirety. 2 I also note that in a formal sense the proposed evidence of Professor Morphy, including the proposed tender of his report, is in the first applicants' case. The first applicants' evidence completed in the last tranche of evidence in July 2003. At that time senior counsel for the first applicants reserved the prospect of calling an expert witness in the current tranche of evidence, which otherwise was proposed to complete the evidence of the first and fifth respondents. 3 The context in which the application is made is as follows: 4 In accordance with directions, the first applicants filed anthropologists' reports from Professor Merlan and Mr Graham. Professor Maddock's report was filed in June 2002 as the first respondent's response to that anthropological evidence. Subject to supplementary reports, that was in effect the close of the anticipated expert anthropological evidence. I subsequently made an order extending the time by which supplementary reports from the proposed expert anthropological witnesses might be filed to 23 May 2003. In fact, Mr Graham filed a supplementary anthropological report on 30 May 2003 and he has since given evidence. Professor Merlan was not called to give evidence. 5 In June 2003 a so-called 'supplementary' anthropologist's report was filed by the first applicants, being proposed evidence from Professor Bruce Rigsby. His report is dated June 2003. It was proposed that Professor Rigsby give evidence during the last tranche of evidence ending on 23 July 2003. As I was told, he was present in Darwin for about two weeks during that period and at one point was about to give evidence. Issues arose as to the admissibility of his proposed report, both due to its form and its contents. The issue also was raised by the first and fifth respondents that Professor Rigsby ought not be permitted to give evidence because his report was not in fact a supplementary report to those of either Professor Merlan or Mr Graham, but a new report from a 'new' anthropologist (that is new to these proceedings), and one which on its face extended the issues for consideration substantially beyond those which had previously been addressed by Professor Merlan or Mr Graham. At all events, his report in its then form was not pressed. He was not then presented to give evidence. The prospect of him giving evidence was not abandoned, but I was told on the adjournment of the previous tranche of evidence on 23 July 2003 that he may be unavailable to give evidence at the present time, even if a revised and more refined report of his were prepared and were to be produced. 6 Senior counsel for the first applicants indicated at the time that the first applicants would consider, but had not finally determined whether to secure a 'supplementary' report from yet a further anthropologist, and if so whether to adduce that person to give evidence. Professor Morphy's report and his proposed evidence is the outcome of that process. It was filed on 5 September 2003. 7 At the time, that is on 23 July 2003, I pointed out to senior counsel for the first applicants that if a further report was proposed to be adduced in evidence, subject of course to any ruling that such evidence might not be admitted, the sooner the document were produced the less likely leave to call the evidence would be contentious on the ground of delay. It is plain that the timing of the filing of the report of Professor Morphy or of any further expert evidence would affect the capacity of the respondents to take instructions with respect to it, and to deal with it in the current tranche of evidence. I accept that, given its contents, the respondents are not in a position to cross-examine Professor Morphy on his report if it is received in evidence at the present time.