FEDERAL COURT OF AUSTRALIA Jango v Northern Territory of Australia (No 4) [2004] FCA 1539 EVIDENCE – compensation claim under the Native Title Act 1993 (Cth) – expert anthropological report – admissibility – whether disconformity between report and evidence of indigenous witnesses should result in the report being rejected as irrelevant to the issues in dispute – whether opinions based on the analysis of source data should be admitted where the source data is not in evidence – whether general observations on the difficulties of language and communication experienced by Aboriginal people when talking about traditional laws and customs is admissible – Evidence Act 1995 (Cth), s 79 Native Title Act 1993 (Cth) ss 50(2), 61(1) Evidence Act 1995 (Cth) ss 56, 60, 79, 135, 136 Neowarra v Western Australia (2003) 205 ALR 145 followed Harrington-Smith v Western Australia (No 2) (Wongatha (No 7)) (2003) 130 FCR 424 cited Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 354 applied Potts v Miller (1940) 64 CLR 282 cited. R v Marquard [1993] 4 SCR 223 cited Farrell v The Queen (1998) 194 CLR 286 cited. JOHNNY JANGO & ORS v NORTHERN TERRITORY OF AUSTRALIA & ORS NTD 6023 of 1998 SACKVILLE J SYDNEY 26 NOVEMBER 2004 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY NTD 6023 of 1998 BETWEEN: JOHNNY JANGO AND OTHERS APPLICANTS AND: NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT GPT MANAGEMENT LIMITED SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: SACKVILLE J DATE: 26 NOVEMBER 2004 PLACE: SYDNEY RULING ON EVIDENCE 1 The respondents have taken numerous objections to a report prepared by Professor Peter Sutton ('the Report'). The Report has been tendered by the applicants in support of their claim, pursuant to ss 50(2) and 61(1) of the Native Title Act 1993 (Cth), for a determination of compensation in relation to the town of Yulara in the Northern Territory. 2 Professor Sutton has qualifications in anthropology and in linguistics and has published widely in these fields. In an earlier judgment, I rejected substantial portions of a report co-authored by Professor Sutton on the ground that those portions did not comply with the requirements of the Evidence Act 1995 (Cth) ('Evidence Act') applicable to opinion evidence: see Jango v Northern Territory (No 2) [2004] FCA 1004 ('Jango (No 2)'). The Report now tendered has been substantially recast in an attempt to comply with the requirements of the Evidence Act. Those requirements were outlined in Jango (No 2) and I do not repeat that analysis in this judgment. 3 The first respondent ('the Territory') filed written submissions identifying what were said to be a number of representative objections. The third respondent ('the Commonwealth') supported the Territory's position and added some objections of its own. After hearing argument I announced my rulings in order to avoid further delays in what has already been protracted litigation. In this judgment, I record the principal rulings and give brief reasons for making those rulings. A GLOBAL OBJECTION 4 The Solicitor-General for the Territory argued that there was a disconformity between the Report and the evidence given by indigenous witnesses. He also contended that there was a disconformity between the way in which the case had been presented by the applicants to date and the approach taken in the Report. This was said to be illustrated by Professor Sutton's contention that native title rights and interests can exist under the traditional laws and customs of the eastern Western Desert Bloc in persons who are not necessarily ngurraritja for particular places. (Professor Sutton interpreted the word 'ngurraritja', as used in the Pitjantjatjara and Yankunytjatjara dialects, as meaning 'someone that belongs to a place, traditional owner or custodian'.) 5 The Solicitor-General submitted that counsel for the applicants and the indigenous witnesses themselves had taken a more confined view of the rights and interests that could exist under the traditional laws and customs of the Western Desert bloc. Because of this disconformity, so the Solicitor-General argued, the Report was irrelevant to the issues in dispute and should be rejected pursuant to s 56(2) of the Evidence Act, which provides that evidence that is not relevant in the proceeding is not admissible. 6 There may be some force in the Solicitor-General's observations as to possible disconformity between the Report and the evidence of indigenous witnesses. However, I have not been taken in any detail to the evidence of the indigenous witnesses. Indeed, at this stage of the litigation, I would not expect the parties to undertake that task. In view of the volume of evidence from indigenous witnesses, heard over some thirty hearing days, and the range of matters dealt with in the Report, I cannot yet assess whether any disconformity that may exist is as pronounced as the Solicitor-General suggests. I shall be in a position to make that assessment only after a close consideration of all the evidence in the case. 7 If Professor Sutton's Report is ultimately found to have the defect attributed to it by the Solicitor-General, the consequence may well be that the Report will have little probative value on the issues in dispute. In my opinion, however, it is not appropriate to attempt to make the assessment at this stage of the litigation. In short, it seems to me that the Report, subject to particular objections, is likely to be relevant to the issues in the proceedings. Accordingly, I do not think the global objection ought to be upheld. specific objections 8 The specific objections to the Report reflected, in part, the concerns of both the Territory and the Commonwealth that a vast amount of material is referred to in the footnotes and in the appendices to the Report. If that material is admitted into evidence on the basis that it explains Professor Sutton's reasoning process, the effect of s 60 of the Evidence Act may be to prevent the hearsay rule applying. (Section 60 provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.) Consequently, that material, if admitted into evidence without qualification, could be taken as evidence of the truth of any facts asserted therein: Neowarra v Western Australia (2003) 205 ALR 145, at 159 [38], per Sundberg J; Harrington-Smith v Western Australia (No 2) (Wongatha (No 7)) (2003) 130 FCR 424. 9 My initial impression was that the respondents' concerns about the effect of s 60 of the Evidence Act on hearsay material included in the Report were well founded. Mr Parsons SC, who appeared on behalf of the applicants, stated in response to an inquiry from me that the applicants would not resist an order pursuant to s 136 of the Evidence Act limiting the use of that material by reason of the danger that otherwise the respondents would suffer unfair prejudice by the admission of that material. Accordingly, I indicated that I would make such an order, thereby alleviating some of the respondents' concerns about the Report. 10 The parties subsequently agreed that a direction should be made in the following terms: 'Pursuant to s 136 of the Evidence Act, those parts of the Sutton Report admitted into evidence which contain or refer to a previous representation made by a person are not admissible to prove the existence of a fact that the person intended to assert by the representation and the use to be made of such parts of the Sutton Report is limited to disclosing the basis for opinions expressed by the author of the said Report.' 11 Despite the direction pursuant to s 136 of the Evidence Act, the Territory, supported by the Commonwealth, maintained its objections to certain sections of the Report. Lack of Basis 12 The Territory objected to some paragraphs of the Report on the ground that Professor Sutton had expressed the basis for his opinion in such general terms that the reasoning process was insufficiently clear. This was said to make the opinion evidence irrelevant or, alternatively, to render it inadmissible on the basis that it was impossible to discern whether the expression of opinion was the product of Professor Sutton's specialised knowledge, as required by s 79 of the Evidence Act. 13 Objection was taken on this ground to a portion of par 326 of the Report,which is in the following terms: 'I would add that in the eastern Western Desert a capacity to assert strong traditional connections is based on the ability to cite several of bases of claim. In other words, in this part of the Western Desert, the capacity to assert a relationship of belonging to an area is accretive – that is, a person with several bases of claim has a stronger case for asserting rights and interests, cumulatively speaking, than someone who has only a single basis of claim.' In par 328, Professor Sutton states that his opinion on this issue is based on: 'my training, study and experience as an anthropologist … and in particular, on … my recollection and analysis of the aggregate of what my informants in this case have told me about the relationship of people with country in the eastern Western Desert. It is an inference I have drawn from the totality of the anthropologically relevant data available to me …' 14 If the opinion expressed in par 326 was unsupported by any reasoning process, other than a vague reference to Professor Sutton's training and experience, it might be rejected as irrelevant. This would be because the lack of any apparent basis for the opinion would make the opinion itself irrelevant to any issue in dispute in the proceedings: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 354, at [14], per Branson J. 15 A fair reading of the Report indicates, however, that the opinion expressed in par 326 is supported by more than the bare assertion contained in par 328. Professor Sutton's detailed reasoning is set out in pars 329 to 396. That reasoning may or may not ultimately prove to be convincing. In my view, it is sufficient to show that Professor Sutton's opinion might rationally affect the assessment of the probability of the existence of a fact in issue, namely whether any of the applicants have an interest in the claim area under the traditional laws and customs of the eastern Western Desert. The opinion is therefore relevant to the issues. The reasoning also satisfies me on the balance of probabilities, at this stage of the litigation, that Professor Sutton has formed the opinion by reference to his specialised knowledge as an anthropologist: Sydneywide Distributors v Red Bull, at [16], per Branson J. 16 The Territory objected on the same grounds to par 50 of the Report. In this paragraph, Professor Sutton advances an hypothesis as follows: 'The old rules persist in the minds of older people and may be stated in a simple or conservative form that does not describe at all richly the various solutions younger people have been reaching in practice. Even if an older person may disagree with some such developments, and may even consider them less than lawful in the customary sense, the fact that these shifts occur mainly in a rather organised fashion and as an extension rather than a reversal of tradition, means that one can reduce them to systemic generalisations.' In par 51, Professor Sutton says that his opinion is based on fieldwork with and data obtained from informants from different age groups and historical backgrounds, together with his study of earlier ethnographic records. 17 The opinion expressed in par 50 may be of some importance in the case. Professor Sutton appears to be suggesting that the different practices adopted by younger people can be regarded as an 'extension' of traditional laws and practices, rather than a departure from those laws and practices. It is, however, difficult to ascertain the basis for the opinion, except in the general terms expressed in par 51. 18 Nonetheless, the opinion is not entirely unsubstantiated. Professor Sutton refers in pars 50 and 51 to the work of Nancy D Munn, now Emeritus Professor of Anthropology at the University of Chicago. Professor Munn worked with Pitjantjatjara and Yankunytjatjara people at Areyonga in the Northern Territory in the mid-1960s and wrote accounts on her fieldwork which are cited in the Report. It may be that Professor Munn's research (although not admitted as proof of the truth of any assertions contained therein) supports or at least explains Professor Sutton's opinion expressed in par 50. 19 While Professor Sutton's reasoning in this part of his Report does not seem to be entirely clear, I think that his opinion may be relevant to an issue in the proceedings and can also be seen to be the product of his expertise as an anthropologist. I bear in mind, too, that in this Court it has been held that s 79 of the Evidence Act does not incorporate a 'basis rule': Neowarra v Western Australia, at 153 [22]-[23], per Sundberg J. Accordingly, I admitted pars 50 and 51 of Professor Sutton's Report. Paragraphs 239 to 241 20 In these paragraphs, Professor Sutton records the results of his analysis of data compiled by Professor Elkin in the course of field work carried out in the north-west of South Australia and of genealogical data compiled by Professor Strehlow. Professor Sutton expresses the opinion, on the basis of his analysis of the source data, that this region of the eastern Western Desert did not have a system of patrilineal totemic descent groups. Professor Sutton concludes that Norman Tindale, who had reached a contrary view in 1933, was 'wrong on this point'. 21 At the time pars 239 to 241 were tendered, neither the documents recording Professor Elkin's fieldwork nor the genealogies of Professor Strehlow had been tendered. Indeed the respondents had only been informed shortly before the adjourned hearing that the applicants intended to tender this substantial volume of material. 22 Mr Parsons did not dispute the proposition that unless and until Professor Elkin's notes and Professor Strehlow's genealogies are admitted into evidence, Professor Sutton's analysis of their data could be of little probative value and therefore was irrelevant to any issue in the proceedings. To the extent that this was a concession, it may have gone too far. It may be enough for pars 239 to 241 to become admissible that the notes and genealogies be made available to the respondents in sufficient time to enable them to have an opportunity to analyse the data before cross-examining Professor Sutton on the issue. Since the source data had neither been admitted into evidence nor made available to the respondents in good time, I rejected pars 239 to 241. 23 I indicated, however, that I would consider a retender of pars 239 to 241 after the applicants tendered the source data (a course which they foreshadowed). I thought it appropriate to defer the foreshadowed tender of the source material until the respondents had an adequate opportunity to consider the material and formulate their position with respect to it. Paragraphs 591 to 595 24 In par 591, Professor Sutton expresses agreement with the proposition that Kunmanara (Bruce) Breadon and other descendants of Karnakarna Hawkeye held rights under the body of laws and customs of the eastern Western Desert in relation to 'the inner study area' (that is, an area within a 100 kilometre radius of Yulara). At pars 592 to 606, Professor Sutton seeks to support this opinion. 25 The reasoning in those paragraphs is directed to establishing a number of factual propositions. These include the dates of birth of particular people, the family links between Karnakarna and a number of his descendants and an account of documentary records suggesting that Karnakarna practised certain rituals. The supporting material is referred to in footnotes but little or none of that material is in evidence. 26 The Territory objected to this part of the Report on the ground that it contains advocacy rather than expert opinion. As Mr Parsons pointed out, the reasoning of an expert in support of an opinion might be relevant and admissible as expert opinion even though it contains an element of advocacy. But it is still necessary to demonstrate that the tendered material is the product of specialised knowledge based on study, training or experience. 27 It may well be open to an anthropologist, for example, to express a view about a particular person's 'rights' in respect of land under the traditional laws and customs of a group by reference to: * the anthropologist's analysis of materials bearing on the traditional laws or customs of the group and his or her opinion based on those materials; and * assumed or established facts concerning the circumstances of the person, insofar as they are relevant to his or her claim to be entitled to rights or interests under traditional laws or customs. Similarly, by analogy to principles applied in relation to the evidence of accountants (Potts v Miller (1940) 64 CLR 282), it may be open to an expert to summarise the effect of complex or voluminous primary evidence that otherwise would be difficult to understand. 28 I do not interpret this section of the Report as doing either of these things. The Report does not, for example, purport to identify facts assumed by Professor Sutton for the purpose of him expressing an opinion as to whether particular individuals hold rights under the traditional laws and customs of the eastern Western Desert. Nor does the Report purport to summarise in convenient fashion complex source material. 29 Rather, this section of the Report apparently seeks to establish primary facts that would support the claims of particular individuals to hold such rights. It does so by reference to historical material and other documentation that is not in evidence. Doubtless professional experience with similar historical material or documentation will be helpful in locating relevant documents. But determining the primary facts from these sources, in relation to matters such as dates of birth, family links or the observances of particular practices, is not an inquiry that has been shown to be the product of specialist knowledge based on training or experience. Once the source materials are admitted into evidence, it is for the Court to determine whether they establish the primary facts relied on by the applicants to establish their claims. 30 None of this is to deny that the information compiled in pars 591 to 595, if supported by other evidence, may be relevant to the issues in dispute. Nor is it to deny that the compilation may be a useful way of presenting what otherwise would be a mass of material (although there is no apparent reason why this could not be done by way of submission or in an aide-memoire handed up with or attached to written submissions). But in my view pars 591 and 595, in their present form, are not admissible in order to prove the facts asserted therein. 31 The respondents indicated that they did not object if pars 591 and 595 were admitted on the limited basis that they are to be treated as submissions only. Accordingly, I took that course. Paragraphs 632 to 646 32 In par 632, Professor Sutton identifies three areas within the Yulara block said to be sacred sites. Professor Sutton expresses the opinion in par 633 that access restrictions to one of the sites known as Katartitja, imposed by reason of the airport development: 'prevent people from potentially carrying out their customary and preferred practice of singing the appropriate song verses whilst physically travelling along the Dreaming Track concerned …' In pars 634 and 635, Professor Sutton makes similar observations about the other two sites, which he describes as the 'Marlu sandhills' and the 'Yulara Resort sandhills'. 33 The reasoning to support those opinions is contained in pars 637 to 646. In large measure, the reasoning records and relies upon information said to be given to Professor Sutton by Aboriginal persons interviewed by him for the purposes of the proceedings. Many of these persons gave evidence in the proceedings and were cross-examined. It is fair to say that in important respects, especially concerning Katartitja, their evidence was challenged by the respondents. 34 In my view, the expression of opinion in par 633 is not the product of Professor Sutton's specialised knowledge based on his training, study or experience. It is an opinion based on his assessment of out of court statements made by the very people who gave evidence or who (unless they died or were ill) could have given evidence on precisely that question. The same is true of pars 634 and 635. 35 It is for these reasons that I rejected pars 632 to 646. Part 10 of the Report 36 Part 10 of the Report includes some general observations by Professor Sutton on the difficulties of language and communication experienced by Aboriginal people when talking about traditional laws and customs. The bulk of Part 10, however, consists of Professor Sutton's comments on particular pieces of evidence given by Aboriginal witnesses at the hearing. Professor Sutton states that he is able to express opinions on matters of 'cross cultural communications' by virtue of his 35 years experience as an anthropologist and linguist. 37 An example of the opinions expressed in Part 10 is contained in par 672, where Professor Sutton addresses 'attempts by counsel to elicit descriptions of customary law': 'This method brought forward a number of articulations of ideas about laws and customs, some of which, if taken at face value, I would reject as accurate or full accounts of the normative arrangements in the claimants' society. In such cases the statements merely reflect the futility of defining Aboriginal laws and customs as what the people can articulate in a few minutes in a court room, and when their first answer is wrongly assumed to be their entire knowledge of the matter. For example, (T1457): MS KELLY: So is that what law is, that you get it [country] from your grandfather? PETER WILSON: Grandmother. Being a bloke, you'd lean towards grandfather, and being a lady you'd lean towards following your grandmother. Why? I don't know; its just the way it is.' 38 The general principle is that the ultimate conclusion as to the credibility or truthfulness of a particular witness is a matter for the trier of fact and is not the proper subject of expert opinion: R v Marquard [1993] 4 SCR 223, at 248, per McLachlin J (Sup Ct, Canada), cited in Farrell v The Queen (1998) 194 CLR 286, at 321 [93], per Callinan J. However, in Farrell v The Queen the High Court held that an expert may give evidence as to the existence or possible existence of a disorder or disability affecting the capacity of a witness to give reliable evidence, provided the testimony goes beyond the ordinary experience of the trier of fact. Accordingly, evidence should have been admitted from a psychiatrist that the complainant suffered from mental disorders that may have caused memory impairment and a propensity to lie: at 293 [12], per Gaudron J; at 300 [29], per Kirby J; at 322 [93], per Callinan J. 39 I was not taken in argument to Farrell v The Queen, and thus I have not had the benefit of submissions as to whether the principle applied in that case extends to evidence concerning language or communications difficulties that might be experienced by Aboriginal witnesses. Nor was my attention drawn to any native title or similar cases in which evidence of this kind has been admitted. 40 I think it is at least arguable that an anthropologist with extensive experience in communicating with Aboriginal people on matters of traditional laws and customs can give evidence of language or communications difficulties that might have a bearing on the ability of Aboriginal witnesses to give reliable or complete evidence on important issues. In the absence of full argument on these issues, I think it appropriate to admit the general observations of Professor Sutton about language or communications difficulties likely to be experienced by Aboriginal witnesses. Some of these difficulties are well known and it may be that the points made by Professor Sutton could equally be made in submissions. Nonetheless, I think that the observations might be of some relevance and can be said to be the product of relevant training or experience. 41 Insofar as Professor Sutton comments on particular passages of evidence given at the hearing, I do not think that his comments should be admitted into evidence. The evaluation of specific evidence is the task of the trier of fact. In discharging that task, the trier of fact will have to take account of many factors, of which the difficulty of cross-cultural communications is but one. I do not think that the relevant expertise of an anthropologist extends to the evaluation of specific evidence given by particular witnesses at the hearing. 42 Even if the proffered evidence evaluating the testimony of particular witnesses was within Professor Sutton's expertise, I would reject it pursuant to s 135(c) of the Evidence Act. To allow Professor Sutton to give evidence of this kind is to invite a collateral dispute, potentially involving lengthy cross-examination, on a matter that is quintessentially for the Court to determine. The probative value of the evidence, if any, is substantially outweighed by the danger that the evidence will result in an undue waste of time. CONCLUSION 43 I have asked the parties to attempt to reach agreement as to which other paragraphs in the Report should be rejected or admitted on a limited basis having regard to these rulings. If they cannot reach agreement, I shall hear further argument. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ruling on Evidence herein of the Honourable Justice Sackville. Associate: Dated: 29 November 2004 Counsel for the Applicants: D Parsons SC with A Keely Solicitor for the Applicants: Central Land Council Counsel for the First Respondent: T Pauling QC with J Kelly Solicitor for the First Respondent: Solicitor for the Northern Territory Counsel for the Third Respondent: V Hughston SC with M Perry Solicitor for the Third Respondent: Australian Government Solicitor Date of Hearing: 22-26 November 2004 Date of Judgment: 26 November 2004