Neowarra v State of Western Australia [2003] FCA 1400

FEDERAL COURT OF AUSTRALIA

Neowarra v State of Western Australia [2003] FCA 1400 EVIDENCE – Hearsay rule – Rule not apply to evidence of a representation, made by a person called to give evidence, given by a person who heard the representations being made if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation – Whether exception applies to statements by Aboriginal people recounting stories, rules, customs and practices handed down by their forebears. Evidence Act 1995 (Cth) s 64(3) Graham v The Queen (1998) 195 CLR 606 considered PADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS

WAG 6016 OF 1996

WAG 6015 OF 1999 WAG 6006 OF 2002 SUNDBERG J 8 DECEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6016 OF 1996

WAG 6015 OF 1999

WAG 6006 OF 2002

BETWEEN: PADDY NEOWARRA, PADDY WAMA & OTHERS

APPLICANT

AND: THE STATE OF WESTERN AUSTRALIA & OTHERS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 8 DECEMBER 2003

PLACE: MELBOURNE

GWION GWION BOOK RULING 1 The applicants tendered the book Gwion Gwion and sought to have in evidence statements contained in it attributed to LG, DM, Paddy Wama and Paddy Neowarra together with the photographs of Gwion Gwion art and other subjects to which the statements relate. They did not seek to rely on any of the text that had been written by others. The respondents had no objection to the tender in relation to the statements attributed to the two deceased men and the photographs relating thereto. However they objected to receipt of the statements of the other men on the ground that the statements were hearsay. 2 Jeff Doring was involved in the layout and design of the book. He gave evidence that he collected data from the four authors over a seven year period (1992 to 1999). He said: "The renditions of the words attributed in Gwion Gwion to each of the authors respectively are each a true and accurate rendition of words spoken in my presence by the respective authors. Where the words attributed to an author refer to a place or painting or event, those words (almost without exception) were respectively spoken by that author at or in the vicinity of that place, painting or event, or at related places. Paintings or events and the photographic illustrations in Gwion Gwion are placed so as to depict that place, painting or event." 3 Paddy Wama gave evidence that he had talked a lot to Mr Doring, and that what he had told him was true. Paddy Neowarra's evidence was to the same effect. He identified several photographs in the book. I accept that what is attributed to the two authors is what they told Mr Doring. 4 The applicants rely on s 64 of the Evidence Act 1995 (Cth) for the inclusion of the statements and photographs. Section 64 applies in a civil proceeding if the person who made a previous representation is available to give evidence about an asserted fact: sub‑s (1). Sub‑section (3) provides: "(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation." 5 Mr Doring is a person who heard the authors' representations being made, and he gave evidence that the representations attributed to them in the book were in fact made by them. The question then is whether, when each statement was made to Mr Doring, "the occurrence of the asserted fact was fresh in the memory" of its maker. 6 The statements in question are generally the recounting of stories recorded in the art work the subject of the photographs, or accounts of practices and customs that had been handed down to the authors by their forebears. Some examples will assist in understanding the type of statements involved. Paddy Wama is credited with the statement appearing beneath a photograph of the skull of a young crocodile (page 247): "Young crocodile …all these chosen animals belong to Wanjina young people can't eat 'em you know."