Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 8) [2004] FCA 338

FEDERAL COURT OF AUSTRALIA

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

Western Australia (No 8) [2004] FCA 338

EVIDENCE – native title – admissibility of documents – records kept by now deceased missionary of births and deaths of indigenous persons, some births and some burials occurring at the former mission, some elsewhere – hearsay rule – exceptions to the hearsay rule – some records of events within personal knowledge of the missionary – some events within personal knowledge of missionary's informants – other documents tendered, including handwritten genealogical sheets prepared by missionary's daughter, affidavit of now deceased native title claimant, memorandum from ethnobotanist and memorandum from consulting anthropologist – whether exception to hearsay rule in s 63 of the Evidence Act 1995 (Cth) ('the Act') applies – whether activities of mission an 'undertaking' and therefore a 'business' – whether 'business records' exception to hearsay rule in s 69 of the Act applies –exception to hearsay rule as to evidence of reputation as to relationships or age under s 73 of the Act – discretion to exclude evidence under s 135 of the Act.

NATIVE TITLE – evidence – admissibility of documents – records kept by now deceased missionary of births and deaths of indigenous persons, some births and some burials occurring at the former mission, some elsewhere – hearsay rule – exceptions to the hearsay rule – some records of events within personal knowledge of the missionary – some events within personal knowledge of missionary's informants – other documents tendered, including handwritten genealogical sheets prepared by missionary's daughter, affidavit of now deceased native title claimant, memorandum from ethnobotanist and memorandum from consulting anthropologist – whether exception to hearsay rule in s 63 of the Evidence Act 1995 (Cth) ('the Act') applies – whether activities of mission an 'undertaking' and therefore a 'business' – whether 'business records' exception to hearsay rule in s 69 of the Act applies –exception to hearsay rule as to evidence of reputation as to relationships or age under s 73 of the Act– discretion to exclude evidence under s 135 of the Act.