FEDERAL COURT OF AUSTRALIA Banjima People v State of Western Australia [2011] FCA 1454 Citation: Banjima People v State of Western Australia [2011] FCA 1454 Parties: DAWN HICKS, KEITH LETHBRIDGE, MAITLAND PARKER, TIMOTHY PARKER, CHARLIE SMITH, STEVEN SMITH, ALEC TUCKER AND ARCHIE TUCKER ON BEHALF OF THE BANJIMA PEOPLE v STATE OF WESTERN AUSTRALIA & ORS File number: WAD 6069 of 1998 Judge: BARKER J Date of judgment: 15 December 2011 Catchwords: EVIDENCE - question of whether restricted evidence taken for the purposes of determining whether to unrestrict prior restricted evidence should be admitted as evidence in the main proceeding - characterisation as "voir dire" evidence by the parties - Court not called upon to decide a preliminary question - evidence received as evidence in the trial - separate tender not required EVIDENCE - tender of affidavit evidence - documents included in a notice of documents to be tendered served by applicants on the respondents - whether admission of affidavits into evidence would unfairly prejudice the first respondent - danger of prejudice not so great as to substantially outweigh probative value Legislation: Evidence Act 1995 (Cth) s 135, s 136, s 189 Cases cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Australian Securities and Investments Commission v Rich [2004] NSWSC 1062; (2004) 51 ACSR 363; (2004) 213 ALR 338 Brown v Commissioner of Taxation [2002] FCA 318; (2002) 119 FCR 269 Casley-Smith v F S Evans & Sons Pty Ltd (No 2) (1988) 49 SASR 332 Dixon v McCarthy [1975] 1 NSWLR 617 Ex parte Whitelock; Re MacKenzie [1971] 2 NSWLR 534 Date of hearing: 6 December 2011 Place: Perth Division: General Division Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: Mr GMG McIntyre SC Solicitor for the Applicant: Roe Legal Services Counsel for the Applicant: Mr SJ Wright Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr KM Pettit SC Solicitor for the State of Western Australia: State Solicitors Office Counsel for the Rio Tinto Respondents: Mr GR Donaldson SC Solicitor for the Rio Tinto Respondents: Blake Dawson Counsel for the BHP Billiton Respondents: Ms JM Bursle Solicitor for the BHP Billiton Respondents: Blake Dawson Counsel for the Pastoral Interests: Mr JH Graham Solicitor for the Pastoral Interests: Cornerstone Legal Counsel for Hancock Prospecting Pty Ltd: Ms L Barnett Solicitor for Hancock Prospecting Pty Ltd: Squire Sanders (AU) IN THE FEDERAL COURT OF AUSTRALIA western australia DISTRICT REGISTRY general division wad 6096 of 1998 BETWEEN: dawn hicks, keith lethbridge, maitland parker, timothy parker, charlie smith, steven smith, alec tucker and archie tucker on behalf of the banjima people Applicant AND: state of western australia & ors Respondent Judge: barker j DATE: 15 december 2011 PLACE: perth REASONS FOR JUDGMENT rulings on evidence 1 The trial in this native title proceeding commenced in the Pilbara region of Western Australia, within what is called by the parties "the Banjima trial area" on 4 July 2011. 2 The trial was subsequently adjourned and is to be resumed on 20 December 2011. 3 On 6 December 2011 a directions hearing was conducted before me with a view to programming the proceeding through to the conclusion of the trial. 4 Other matters concerning admission of evidence were raised before me. In relation to two of those matters I indicated I would reserve my ruling. These reasons indicate how I will rule in respect of the reception of evidence in each relevant case when the trial resumes. reception of evidence given by slim parker and maitland parker on 6 July 2011 5 On 4 July 2011, Slim Parker and Maitland Parker (amongst others) gave evidence in the trial often referred to in native title proceedings as "restricted men's evidence" which was the subject of confidentiality orders restricting hearing and dissemination of the evidence to certain male persons. 6 On 6 July 2011, in Karijini National Park, counsel for the first respondent (State of Western Australia) sought to cross-examine Slim Parker and Maitland Parker about aspects of that restricted men's evidence in open court on the basis that those aspects should not be the subject of the confidentiality orders and, in that regard, should be unrestricted. The applicant opposed that course and indicated it wished to call Slim Parker and Maitland Parker to give further evidence to explain why the confidentiality orders made on 4 July 2011 should continue to apply to the challenged aspects of the restricted evidence. 7 To facilitate the application of the State to unrestrict aspects of the restricted men's evidence, the Court indicated that it was appropriate to take the applicant's proposed further evidence pursuant to the same confidentiality orders that applied to the restricted men's evidence. Evidence was then taken from Slim Parker and Maitland Parker concerning the aspects of the evidence the State contended should be unrestricted. 8 Following examination of Slim Parker and Maitland Parker and their cross-examination by senior counsel for the State, and the making of submissions by the parties, I ruled that the whole of the evidence received on 4 July 2011 and the subject of the confidentiality orders should remain restricted. 9 Following this, the applicant applied on 6 July 2011 for the evidence given by Slim Parker and Maitland Parker on 6 July, which was the subject of the confidentiality order, to be received as part of the evidence in the proceeding upon which the parties were entitled to rely, but which should remain restricted. The State indicated then that it wished to reserve the right whether to oppose that course. Ultimately, the State at the directions hearing on 6 December 2011 indicated that it opposed the reception of that evidence on this basis. I indicated I would consider the issue and provide my indicative ruling prior to the resumption of the trial. 10 The applicant submitted that in order to properly understand the evidence given on 4 July 2011 about which the State wished to cross-examine on 6 July, the Court needs to place it in the context of the restricted evidence given on 6 July. It follows that the restricted evidence given on 6 July should become part of the evidence considered by the Court in assessing the whole of the evidence. In referring to the restricted evidence of 6 July by Slim Parker and Maitland Parker, the applicant referred to the evidence as "voir dire" evidence. 11 The applicant contends that the confidentiality orders 3, 4, 5 and 6 of 18 October 2010 which apply to the restricted men's evidence of both 4 July and 6 July 2011, should continue to apply to the evidence because of the gender sensitive nature of the evidence as explained by Maitland Parker in the course of the evidence on 6 July. 12 At the directions hearing on 6 December 2011, senior counsel for the State raised two points in opposing the course proposed by the applicant. First, that the evidence of Slim and Maitland Parker of 6 July 2011 was "strictly in the nature of voir dire" to decide a point that was not necessarily relevant to the trial. Secondly, the State did say on 6 July or shortly afterwards that it sought to reserve its position. Generally, senior counsel submitted that the Court would not be deprived of probative evidence if the evidence of 6 July were not received and it was open in the normal course of the trial to the applicant to lead the evidence, but they declined to do so. 13 It may be seen that both the applicant and the State appear to proceed, in relation to this question, on the basis that the restricted evidence of Slim Parker and Maitland Parker given on 6 July, in order to deal with the question of unrestricting aspects of the restricted men's evidence of 4 July 2011, was evidence taken on a "voir dire" or "trial within a trial". It may be that to some extent the Court made that assumption as well, although nothing actually said by the Court when the further restricted evidence was taken from Slim Parker and Maitland Parker on 6 July 2011 at Karijini National Park adverted to that hearing as a "voir dire". 14 The Evidence Act 1995 (Cth) primarily governs the reception of evidence in this Court. However, where it is silent it may be that the common law or general law remains applicable. Section 189 of the Evidence Act has the heading "Voir Dire", although the terms of s 189 do not themselves utilise that expression. Instead, s 189 provides for what is to be done where there is a "preliminary question" as to whether evidence should be admitted, or whether evidence can be used against a person, or whether a witness is competent or compellable, which depends on the Court finding that a particular fact exists. In such a case, where there is a jury, s 189 has application. Section 189 is not applicable to a circumstance such as the present, however, because, apart from anything else, the Court on 6 July 2011 was not called upon to decide any such preliminary question. Rather, the question raised was simply whether certain aspects of the restricted men's evidence taken on 4 July 2011 should be unrestricted. 15 But even if one takes the broader view that the general law or common law position in relation to evidence given on a voir dire should apply in circumstances where s 189 does not apply and that the question raised by the State on 6 July 2011 should be treated as incidental to the primary issues in the trial, the authorities predominantly support the view that the evidence given on a voir dire (or trial within a trial) in such a proceeding as this is evidence in the proceeding and does not need separate tender in order to receive it. 16 I note, however, that Odgers, Uniform Evidence Law 9th Edition at [1.5.520] suggests that in trials without a jury, or cases where the jury has been present during a voir dire, the voir dire testimony may be admitted in the trial proper – if relevant to a fact in issue and not subject to any exclusionary rule: Brown v Commissioner of Taxation [2002] FCA 318; (2002) 119 FCR 269 (Brown) at [95] per Sackville and Finn JJ is relied upon in this regard. The author suggests that the law is "unsettled" as to whether there must be a formal retendering of the evidence and in this regard refers to Brown at [93]-[95]. The author doubts the alternative view expressed by Austin J in Australian Securities and Investments Commission v Rich [2004] NSWSC 1062; (2004) 51 ACSR 363; (2004) 213 ALR 338 (ASIC v Rich) at [49] where his Honour concluded that evidence given in a voir dire in a civil proceeding without a jury is, when taken, evidence in the proceeding, unless some order is made qualifying its status or significance under s 135 or s 136 of the Evidence Act. 17 Odgers makes the point at [1.5.520] that if evidence admitted in the voir dire (relevant to the issue or issues to be determined by the voir dire) is not relevant to a fact in issue in the trial proper, it is not admissible under s 56(2) of the Evidence Act. Similarly, if the evidence is subject to an exclusionary rule which only has operative effect in the trial proper, it is not admissible. The author suggests it should not simply be assumed that evidence admitted in the voir dire is relevant to a fact in issue in the trial and not rendered inadmissible by any exclusionary rule. Accordingly, evidence admitted in the voir dire should not be regarded as "when taken, evidence in the proceeding" subject to discretionary exclusion or limitation on use. Thus Odgers suggests that it would be preferable that there be a requirement of formal tender of the evidence in the trial proper so that any issues of relevance, admissibility and possible application of Pt 3.11 discretions may be properly considered. The author acknowledges that subject to this the evidence need not be adduced again. Rather, the Court should simply rule that the evidence adduced in the voir dire is to be treated as if adduced in the trial. 18 In ASIC v Rich, Austin J reviewed a number of authorities, commencing with Ex parte Whitelock; re MacKenzie [1971] 2 NSWLR 534 (Ex parte Whitelock) through to and including the judgment of Sackville and Finn JJ in Brown, before concluding in the manner noted above. In Ex parte Whitelock, Meares J considered, although it may be said strictly obiter, that evidence given on a voir dire in a civil proceeding without a jury is evidence, if relevant, on any issue if given in the presence of a jury in a jury trial or action and in all cases if given before a tribunal sitting without a jury. Those observations were followed by Yeldham J in Dixon v McCarthy [1975] 1 NSWLR 617. Similarly in Casley-Smith v F S Evans & Sons Pty Ltd (No 2) (1988) 49 SASR 332 (Casley-Smith), Olsson J, at 335, considered the logic of Meares J's reasoning to be "unassailable". His Honour added it would be "contrary to commonsense that a judge sitting alone should be required, notionally, to disregard what has been heard and then have a witness who has been held properly qualified retraverse much of the same ground again for the purpose (inter alia) of assessing what weight ought to be attributed to the evidence of the witness". Similarly, while again obiter, in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (Amalgamated Television Services), the Court of Appeal in New South Wales, referring to Cross on Evidence at [11035], Ex parte Whitelock and Casley-Smith, considered that the position with voir dire evidence in a civil trial without a jury was different from the position in a criminal trial with a jury and that there is no need to tender the voir dire evidence in the first situation. 19 While in Brown their Honours, Sackville and Finn JJ, in a joint judgment at [95], considered the point addressed in Ex parte Whitelock and Casley-Smith to be "by no means settled", their Honours considered it to be arguable, at least in a civil trial before a judge sitting alone, that evidence admitted on the voir dire may be taken into account on the issues arising at the trial, even without being formally retendered. Their Honours observed: At the very least, however, the evidence must be relevant to the issues arising at the trial and must not be subject to any exclusionary rules. 20 In ASIC v Rich, as noted above, having reviewed these various authorities Austin J, at [49], concluded that evidence on a voir dire in a civil proceeding without a jury is, when taken, evidence in the proceeding, unless some order is made qualifying its status or significance under s 135 or s 136 of the Evidence Act. I think it may also be taken that Austin J in stating that conclusion was also accepting the qualification identified by the authorities he canvassed, that the evidence on the voir dire must also be relevant to a matter in issue in the proceeding. I agree with what Austin J ruled in ASIC v Rich with that understanding. 21 I also note the discussion in ASIC v Rich, at [51]-[59], concerning the obligations that may be imposed on counsel who is cross-examining in a voir dire context in a civil proceeding without a jury. At [54], Austin J indicated that he was prepared to accept that s 135 and s 136 of the Evidence Act were cast in wide enough terms to permit advance rulings to be made if a clear case is established for the Court doing so. However, his Honour noted, at [55], that it might be difficult to conduct this exercise in advance of the commencement of cross-examination in a case such as that before him. His Honour, at [56], noted that s 136 created a similar difficulty. 22 Consequently, at [57], Austin J considered that it would be open to parties to invoke those sections at a point in time where there is sufficient clarity as to the nature of the evidence to which the sections should be applied, so that the Court can sensibly undertake the discretionary exercise that the sections have in mind. His Honour, at [58], noted that this is no more than a consequence of the outworking of the statutory provisions and the common law that the defendants in a case such as that before him should be placed in a position which may present difficulties for them. Ultimately, at [59], Austin J agreed that there is nothing bizarre if, as a result of taking evidence on a voir dire, the Court might receive evidence in the proceeding even though it eventually rules that the evidence is inadmissible or to be excluded on discretionary grounds. His Honour considered that to be a "consequence of the statutory scheme and the common law". I agree with his Honour's commonsense application of the common law and statutory provisions in this regard. A similar point of practice was alluded to by the New South Wales Court of Appeal in Amalgamated Television Services at [205]. In other words, the evidence might be received subject to proper objections. 23 In all the circumstances, I incline to the view that there is no voir dire point, but even if there is I would rule that the evidence received from Slim Parker and Maitland Parker on 6 July 2011 at Karijini National Park, which is currently the subject of restriction pursuant to confidentiality orders, is evidence received in the trial which does not require separate tender. I consider the evidence is relevant to matters in issue in the trial and should not be excluded on the basis of relevance. At the very least it helps to explain aspects of the restricted men's evidence given 4 July 2011. Similarly, I do not consider that there is any basis under s 135 of the Evidence Act to exclude the evidence on the basis that to admit it would be unfairly prejudicial to the State (or any other party) or that it is misleading or confusing or would cause or result in an undue waste of time. The State had the opportunity, which senior counsel exercised when the evidence was taken, to cross-examine the witnesses. Similarly, I do not consider there is any basis upon which the Court should make an order under s 136 to limit the use to be made of that evidence to avoid unfair prejudice to a party or to avoid the evidence having a misleading or confusing effect. 24 In conclusion, the Court will proceed on the basis that the evidence of Slim Parker and Maitland Parker which was given at Karijini Park on 6 July 2011 and which is the subject of a current confidentiality order, is part of the evidence that may be considered by the Court and parties in this proceeding, and that the effective application of the State for a ruling that the applicant must lead such evidence afresh in the proceeding, for it to be admitted into evidence, is rejected. tender of affidavit evidence 25 At the directions hearing on 6 December 2011, the applicant indicated that there was an issue between the applicant and the State in the applicant's proposed tender at the resumed trial of the affidavits of Wobby Parker (deceased), Dudley Parker (deceased), Pixie Christian (deceased) and Horace Parker (deceased) each of which was sworn and filed with the original native title determination application of the Martu Idja Banjima applicant group in 1999. (I note that in this case the applicant does not require the Court to avoid using the full names of the four deceased deponents.) 26 The applicant says the documents were included in a notice of documents to be tendered served by the applicant on the respondents, including the State, in proceeding WAD 6278 of 1998, on 26 May 2011. The applicant says the State therefore has had notice of the applicant's intention to tender the documents since that time and has had ample opportunity to cross-examine witnesses with respect to the matters in them. 27 The State objects to the admission of the evidence in the affidavits at this point in the proceeding. In opposing the admission of the affidavits into evidence, senior counsel for the State submitted, at the directions hearing on 6 December 2011, that the proper time to have tendered the affidavits of ancestors was at the opening so as not to prejudice its ability to cross-examine by viva voce witnesses in respect of material in the affidavits. Senior counsel suggested that this should have been done in the applicant's opening so that there was a clear indication that they were going to be tendered. This was not done and the affidavits were not tendered in sufficient time for the State to cross-examine any lay witnesses about the matters referred to in them. 28 As to the applicant's submission that the applicant gave notice of documents to be tendered, including these affidavits on 26 May 2011, the State says that it is not the respondent's obligation to cross-examine upon an affidavit or any document just in case the applicant wishes to tender it. 29 In passing, senior counsel for the State also noted that it is not clear to the State that these affidavits were ever made available to the experts who are to give anthropological evidence in the proceeding upon the resumption of the trial. 30 In dealing with this issue, at the express request of the State I have not considered the terms of the affidavits and declined an invitation from counsel for the applicant that I might do so. What I am informed by senior counsel for the applicant is that the content of the affidavits goes a little bit further than affirming the content of the application and that they mention various individuals. I will determine this issue on this basis. 31 It is clear that the only issue here is whether admission of the affidavits into evidence would unfairly prejudice the State. There is no question that the content of the affidavits may be relevant to matters in issue in proceeding. The particular issue is whether the State will have been unfairly deprived of the opportunity to pursue matters referred to in the affidavits if the late tender of the affidavits is permitted. 32 The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, pursuant to s 135 of the Evidence Act. Similarly, under s 136(a), the Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party. 33 In circumstances where the affidavits were made for the purpose of supporting the original application for determination of native title lodged on behalf of the Martu Idja Banjima group in 1999, where four members of that group who made affidavits in support of that application in 1999 are now deceased, where the State (and other respondents) have been aware and appraised of these affidavits since those proceedings were commenced in 1999, some 11 years or more prior to the commencement of the trial in this proceeding, and in circumstances where on 26 May 2011, shortly prior to the commencement of the trial on 4 July 2011, the applicant gave notice of their intention to tender a number of documents including these four affidavits, I am not satisfied that the probative value of the affidavit material is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. 34 While I have not been appraised of the particular content of the affidavit, beyond what I have stated above, the conduct of the trial to this point discloses that the parties, including the State, have extensively cross-examined a number of witnesses called at the trial concerning ancestral matters and other matters going to the traditional laws and customs of the applicant. In all of these circumstances I am unconvinced that the danger that the prejudice to the State by not being able to explore the contents thereof with witnesses during the trial to date is so great as to "substantially outweigh" the probative value of the evidence. 35 Put another way, given the large volume of evidentiary material put on by the applicant and in relation to which the State has cross-examined to this point, the affidavit material has the potential to add something to that evidentiary material but not in a way that is, in my judgment, likely to create a particular prejudice to the State that should be considered so great as to "substantially outweigh" the potential probative value of that material. 36 In conclusion, at the resumption of the trial on 20 December 2011, the Court will be prepared to receive into evidence the affidavits of Wobby Parker (deceased), Dudley Parker (deceased), Pixie Christian (deceased) and Horace Parker (deceased) that were sworn and filed with the original native title determination application of the Martu Idja Banjima applicant group in 1999 upon their tender by counsel for the applicant. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 15 December 2011