FEDERAL COURT OF AUSTRALIA

Daniels v State of Western Australia [2000] FCA 413

NATIVE TITLE – admissibility of signs – applicability of hearsay rule - whether exception to hearsay rule – whether admissions against interest – whether reasonably practicable to call witness – whether business records, tags or labels – use for non-hearsay purpose.

NATIVE TITLE – admissibility of video extracts – whether exception to hearsay rule – whether unfairly prejudicial or misleading and confusing.

Evidence Act 1995 (Cth) ss 59(1), 63, 64, 69, 70, 81, 82, 87, 88, 135

Ward v Western Australia (1998) 159 ALR 483, considered

Yanner v Easton (1999) 166 ALR 258, applied

DANIELS & OTHERS FOR THE NGARLUMA PEOPLE, MONADEE & OTHERS FOR THE YINDJIBARNDI PEOPLE, HOLBOROW (NEE COSMOS) & OTHERS FOR THE YABURARA & MARDUDHUNERA PEOPLES AND DALE & OTHERS FOR THE WONG-GOO-TT-OO PEOPLE v THE STATE OF WESTERN AUSTRALIA & OTHERS

WAG 6017 of 1996

and part of WAG 127 of 1997

and part of WAG 6256 of 1998

R D NICHOLSON J

4 APRIL 2000

PERTH

RULINGS ON EVIDENCE

1                     The first respondents brought a notice of motion in which it was sought to have the first applicants’ amended application for a native title determination struck out pursuant to s 84C(1) of the Native Title Act 1993 (Cth) as amended(“the NT Act”) for failure to comply with s 61(1) of the NT Act. Although dated 31 August 1999, the motion was not brought as an application until 19 November 1999 and this course was not objected to by any party: cf s 84C(2) of the NT Act. After time was allowed for written submissions, which had not been completed, this application was dismissed by consent on 24 March 2000.

2                     The same notice of motion also sought an order that the first applicants specify the material facts relied upon in respect of their assertion that ss 47A and B of the NT Act apply in these proceedings. However, that aspect of the motion has also been dismissed by consent.

3                     The first respondents are also contesting the admissibility of notices on display at Millstream Homestead, a heritage building in the Chichester Millstream National Park in the Pilbara region.

4                     Additionally, the first respondents have objected to the tendering of a video tape called “Exile and the Kingdom” and in particular portions of the video which, it is asserted, have little probative value and risk being unfairly prejudicial, misleading or confusing and cause undue waste of time: s 135 of the Evidence Act 1995 (Cth).

Millstream signs

5                     During the course of hearing evidence, the Court was taken to Millstream Homestead, a heritage building which is maintained by the National Parks and Nature Conservation Authority and the Department of Conservation and Land Management (“CALM”), bodies which are among the first respondents to these proceedings, represented by the State.

6                     There, the first applicants read into the transcript a number of signs found in a display room. For the first respondents, notice of objection was given to this evidence as hearsay. Alternatively, it was objected to as inadmissible by virtue of s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”)which states that “the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a)  be unfairly prejudicial to a party; or (b)  be misleading or confusing; or (c)  cause or result in undue waste of time.”

7                     For the first respondents it is conceded that much of the material read into the transcript by counsel for the first applicants is uncontentious. The non-contentious material is described as being evidence to the following effect:

-         Millstream is the traditional home of the Yindjibarndi.

-         Millstream is a place where other tribes met for ceremonial purposes.

-         In the 1920’s, groups of Aboriginal people camped at Millstream for initiation and dance ritual as well as to obtain species of wattle for spears. They hunted and gathered while at Millstream.

-         When the pastoral industry spread to the Pilbara in the later 1880’s, many Yindjibarndi people ceased their ceremonial travel and subsistence lifestyle and settled on the stations. Aboriginal people rode the fence lines, checked mills and worked stock. Aboriginal people gradually moved into towns. New out stations and settlements formed.

-         The Yindjibarndi today live and work mostly in Roebourne and Onslow.

-         The nature of paperbark huts, weapons, implements and tools made and used in the period before late 1880s.

8                     However, the case for the first respondents contends that any further inferences and details are contentious and inadmissible. These include evidence to the following effect:

-         Millstream is still one of the most important areas to Aborigines in the Pilbara.

-         CALM employs Aboriginal rangers.

-         Yindjibarndi and Aboriginal park rangers continue a close association with Millstream wetlands.

-         Aboriginal culture still thrives today despite lifestyle changes.

-         Yilbie Warrie taught his song to others.

-         Paperbark huts, weapons, implements and tools are still used or have been used since the 1920s.

9                     In particular, the most contentious issue is whether the usage of the words “continue”, “today” and “still” on the signage (inferring that there is a continued close association with the land) is admissible. This is said to be a matter for extensive exploration as it touches at the heart of the dispute between the parties.

10                  Section 59(1) of the Evidence Act sets out the hearsay rule. It provides that evidence of a “previous representation” made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. The expression “previous representation” is defined to mean “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”. The first applicants admit that the content of the Millstream signs falls within the expression “previous representation” as defined. Therefore, unless there is some exception to the hearsay rule, the evidence will not be admissible.

11                  The first applicants rely on three grounds of exception from the hearsay rule. These, firstly, are that the signs are an admission against interest by the first applicants; secondly, that it would not be reasonably practicable to call witnesses to give first hand evidence; and thirdly, the signs are admissible as business records, tags or labels.

Admissions against Interest

12                  Sections 81 – 88 of the Evidence Act refer to admissions. The first applicants assert the Millstream signs are admissible, notwithstanding the hearsay rule, by virtue of s 81(1) of the Evidence Act which provides that the hearsay rule and the opinion rule do not apply to evidence of an “admission”.

13                  The word “admission” is defined in the Pt 1 of the Dictionary as:

“a previous representation that is:

(a)          made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person’s interest in the outcome of the proceeding.”

14                  Section 82 provides that s 81 does not prevent the application of a hearsay rule to evidence of an admission unless, inter alia (b) “it is a document in which the admission is made”. In this case, the first applicants contend, s 82(b) applies because the admission in question is made in a “document”, namely, the signs.

15                  It was not disputed for the first respondents that the contentious representations are admissions in that they are contrary to the position taken by the first respondents or any of them.

16                  Section 87(1) relevantly provides as follows:

“For the purpose of determining whether a previous representation made by a person is also to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

(a) when the representation is made, the person had authority to make the statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made the person was an employee of the party or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or

…(c) … ”

17                  Section 88 of the Evidence Act states that “the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission”.

18                  Pursuant to both these sections, it is open to the Court, on the submissions for the first applicants, in circumstances where the signs in question have been erected on premises and the premises are under the clear management and control of CALM or other State agencies, to make the finding that the admission was made by the first respondents.

19                  For the first respondents it is submitted that the statements do not qualify as admissions by the State under ss 81 – 88 of the Evidence Act as there is no evidence the State made any of the relevant statements, it having merely permitted their display in its premises.

20                  In my view, the requirements of s 87(1) cannot be satisfied on the evidence. There is no evidence establishing the identity or authority of the person or persons making the statements. There is no evidence establishing whether that person was an employee or consultant. In the absence of identification it cannot be reasonably open to find a person made the admission.

Not reasonably practicable to call witnesses

21                  Section 64(2) of the Evidence Act provides inter alia that the hearsay rule does not apply to a document if it would cause undue expense or undue delay, or would not be ‘reasonably practicable’ to call the person who made the representation to give evidence. The first respondents have made no submissions on this particular ground of exemption except to say that there is no evidence that the State made any of the relevant statements, it merely having permitted their display in its premises. There is no evidence, it is contended, as to the originator of any statement. Having accepted this submission, I accept as a corollary of it that there was no basis on which to apply the exception where there is no person in relationship to whom the requirements of the exception can be tested.

Business records

22                  The case for the first applicants then turns to the exception to the hearsay rule contained in s 69 of the Evidence Act in relation to “business records”. Section 69(1)(b) provides that this section applies to a document that contains a previous representation made or recorded in the document in the course of, or for the purposes of, “the business” of a person, body or organisation.

23                  Section 69(2) provides that “the hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a)          by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b)          on the basis of information directly, or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact”

24                  For reasons similar to those given above regarding the other exceptions to the hearsay exclusion relied upon, I am not prepared to find that the displays can be excepted from the hearsay rule under s 69 of the Evidence Act. There is no evidence as to the maker of the representation and no evidence as to how or where that person acquired the information contained in the signage. It cannot be reasonably supposed that he or she had personal knowledge of the asserted facts nor can it be inferred that he or she was supplied directly or indirectly with the information by a person who might reasonably be supposed to have such knowledge.

Tags or labels

25                  Section 70(1) of the Evidence Act provides that the hearsay rule does not apply to a “tag or label” attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed “in the course of a business” and “for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object or the contents (if any) of the object”. The first applicants contend that in all instances of the signs read at the Millstream Homestead, and especially in relation to the three signs describing the nature of objects on display, the signage is in the nature of a tag or label in writing attached to or placed on those objects in the course of business for the purposes of describing the nature of the object.

26                  I am not satisfied that the material contained in the signage answers the description of a tag or label. They do not constitute a description of an ‘object’ no matter how broad a view is taken as to the meaning of that word. The three signs describing the nature of material referred to by the first applicants, being the titles “Yindijibarndi Dreaming”, and “Yindijibarndi Today”, and “Marbamaya”, do not contain representations objected to by the first respondents.

27                  Subject to what follows concerning non-hearsay usage, I would therefore allow the objections of the first respondents to the Millstream signs to the extent those objections are still maintained on the ground that they are hearsay evidence.

Non-hearsay purpose

28                  Although the contentious representations are not admissible as evidence of the assertion regarding the continuing connection of the Yindjibarndi people to the Millstream area, they are nevertheless admissible as evidence of the fact that CALM has previously permitted representations to be made contrary to the position now taken on its behalf in these proceedings (s 60 Evidence Act). This fact is relevant (see: Ward v Western Australia (1998) 159 ALR 483at 543), although the weight to be attached is ultimately a matter for the Court. It is, therefore, open to the first applicants to make use of the signs for non-hearsay purposes if they wish to do so. I do not consider such usage would be precluded by s 135 of the Evidence Act.

29                  Furthermore it should be born in mind that s 82(1) of the NT Act permits evidence to be admitted notwithstanding the “laws of evidence”. However, I would not apply that section to avoid the application of the restrictions on hearsay exclusion on matters of continuity so fundamental to the applications where the source of that evidence is unidentified.

Videotape

30                  The video extracts contain documentary footage of Aboriginal persons now deceased referred to by witnesses in the primary evidence (said to be Yindjibarndi and Ngarluma people) talking about issues relevant to these proceedings, namely their relationship to land, their culture and law.

31                  The extracts are from a documentary feature entitled "Exile and the Kingdom". The documentary used a compilation of footage shot by two film makers between 1987‑1992. The evidence was that the production of the video was motivated by the desire of the Roebourne Aboriginal community or more particularly the Ngarluma and Yindjibarndi people to tell the story of their history and culture in their own terms. The evidence also suggested that the video was made under the direction of the Community. It was not in dispute that while the material in the documentary had been edited and possibly scripted in part, the views and images contained in it closely reflected those of the claimant group as at the time the video was made.

32                  It is accepted for the first respondents that the extracts are relevant evidence for the purpose of s 56 of the Evidence Act and should not be excluded as hearsay evidence (s 59). They do not dispute that the evidence falls within s 63(2)(b) of the Evidence Act. Section 63 relevantly provides as follows:

"63 (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to:

(a)……

(c)          a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Note 1: Section 67 imposes notice requirements relating to this subsection.

Note 2: Clause 4 of Part 2 of the Dictionary is about the availability of persons."

33                  In proceedings under the NT Act, where applicants rely on oral traditions, any documentary evidence, including recordings of previous representations of deceased ancestors and relatives of the claimant group, that corroborate or give context to oral testimony will be relevant and of assistance to the Court (see Ward at 504 and 517).

34                  The principal contention for the first respondents is that the extracts are inadmissible pursuant to s 135 of the Evidence Act. In support it is contended that because the extracts come from a documentary movie, they are prejudicial in that the danger the fact finder may use the evidence to make a decision on an improper or emotional basis is increased. Secondly, it is asserted the extracts are misleading in that, while they create the impression of an accepted factual representation, it is not possible to determine the extent to which the footage was scripted or rehearsed. In each case they say that these risks "substantially outweigh" the probative value of the material.

35                  Although it is necessary to deal with the admissibility of each extract separately, I make the following general observations.

36                  My impression is that the segments of footage contained in the extracts relied upon are not heavily edited or scripted. Further, my view is that much of the footage contained in the extracts is not deliberately emotive. In proceedings of this nature, dealing with matter such as the spiritual connection between the claimant group and the claim area (see Yanner v Easton (1999) 166 ALR 258 at 269‑270), the Court will exercise considerable caution before excluding evidence because of its perceived emotional content.

37                  While there will be a danger of unfair prejudice in the admission of the hearsay evidence in so far as the opposing party is denied the opportunity to challenge the truth of the representation, that risk or danger will be reduced where the hearsay material is relied upon to corroborate or strengthen oral testimony tested in cross-examination.

38                  I turn to the specific extracts of the video.

8.00–8.39

39                  This segment shows deceased Yindjibarndi elder Allan Jacob performing a watering ceremony at Bilin Bilin, an area visited by the Court. For the first applicants it is asserted that the segment is relevant for the purpose of showing "a practise demonstrating the connection of Yindjibarndi people to their land in accordance with customary practice".

40                  The deceased was the husband of Sylvia Allan and the brother of Bridget Warrie, both of whom gave evidence in these proceedings. He was referred to a number of times in evidence of Sylvia and Bridget and in the evidence of other witnesses. There was a reference to him taking other family members camping at a number of places including Bilin Bilin. The ceremony performed by him in this extract appears to be similar to the ceremony witnessed by the Court during the course of taking evidence on a number of occasions.

41                  In the context of the trial evidence to date I am not satisfied that the admission of this evidence would create a danger of unfair prejudice to the first respondents or that the evidence might be misleading or confusing so that such matters would substantially outweigh its probative value.

8.55-9.42

42                  This segment contains footage of deceased Yindjibarndi elder Yilbie Warrie, including a portion of a song sung by him.

43                  The deceased was the husband of Bridget Warrie and the 'brother' of Woodley King, also a witness in these proceedings. There has been evidence given in the trial so far to the effect that the deceased was a singer and teacher of songs and that he was knowledgeable in matters of tradition and custom.

44                  I am not satisfied in the context of the trial so far that the evidence should be excluded under s 135 of the Evidence Act.

13.43-23.28

45                  This segment includes documentary footage of 'law business' conducted at Woodbrook law ground, as well as footage of Roger Solomon, Johnny Walker and Alan Jacobs, all deceased, discussing matters related to 'law business'. There is an extensive voice-over accompanying the footage. The voice is that of Roger Solomon, deceased, and while it is accepted the voice-over appears to be scripted, it not contended that the representations are excluded by the hearsay rule.

46                  During the course of the trial the Court was taken to the law ground where extensive evidence was given about the law ceremony. My impression is the extract and more particularly the voice over, in some small part, go beyond primary or oral evidence of witnesses.

47                  However, the case for the first applicants relies on this segment only so far as it is demonstrative of and assists the Court in the interpretation of evidence given by the first applicants in relation to law business, evidence which the first respondents had the opportunity to test in cross-examination. If admitted on this basis I am not satisfied that the danger that it may cause unfair prejudice to the first respondents would substantially outweigh its probative value. I therefore do not consider the material should be excluded under s 135 of the Evidence Act.

24.06-26.01

48                  This segment consists of a song sung by Yilbie Warrie and an overdubbed translation of the lyrics and accompanying footage of the Bilin Bilin area.

49                  The case for the first applicants contends that the extract is relevant to the transmission of knowledge of aspects of law and custom which go to the first applicants maintenance of connection to their country

50                  The first respondents acknowledge that the same song was sung to the Court by one of the first applicants’ witnesses, Kenny Jerrold, who elsewhere in his evidence said he was taught songs by the deceased. Given this context and the fact that the accuracy of the translation is not disputed, I do not see prejudice to the first respondents in the admission of this evidence. It should not therefore be excluded under s 135 of the Evidence Act.

40.00-42.57

51                  This extract contains footage of deceased Yindjibarndi people, Karri Monadee, Yali King and Johnny Walker, all of whom were referred to during the taking of evidence. The footage relates to an old ration camp, Buminji, visited by the Court, and, according to the evidence of witnesses in the trial thus far, to be of significance to Johnny Walker. The extracts are not relied upon by the first applicants "other than for the context" they provide.

52                  The footage in this segment is fragmented and somewhat confusing. Further, as with the other extracts, there is prejudice to the first respondents arising from their inability to cross-examine the persons making the representations. I am satisfied the evidence has limited probative value. That value is therefore substantially outweighed by the danger the material may be unfairly prejudicial or misleading or confusing. This extract should be excluded under s 135 of the Evidence Act.

43.51-46.08

53                  This extract is primarily of Karri Monadee deceased recounting a story. Karri Monadee was referred to a number of times in the evidence as a knowledgeable and respected Yindjibarndi woman. Evidence of the same or a similar story was given by witnesses for the first applicants. One of those witnesses appears to be sitting behind the deceased in the video extract.

54                  The extract is relied upon to demonstrate a continuity of knowledge in relation to matters going to the nature of the first applicants connection to country. The intervening narration and singing is only relied upon to provide context. I take this to be a submission that the use of the narration and singing should be restricted, pursuant to s 136 of the Evidence Act, which allows the Court to limit the use of evidence which maybe prejudicial, to providing context for the statements of the deceased.

55                  The principle concern for the first respondents is the dramatised nature of the story. However, the possible prejudice would be reduced if a restriction is placed on the use of the narration and singing pursuant to s 136.

56                  Given that the statements of the deceased are consistent with and do not go substantially beyond evidence already given I am not satisfied that, subject to a restriction on the use of parts of the extract referred to, the danger of unfair prejudice would substantially outweigh the probative value of the extract. The extract should therefore be admitted on the basis that the narration and singing is relied upon only to provide context.

48.42-49.23

57                  This extract has footage of Yali King, deceased, the mother of one of the principal witnesses for the first applicants, Woodley King. This segment is relied upon to corroborate evidence given by witnesses for the first applicants that she lived and worked at Millstream. If accepted into evidence on this limited basis I am not satisfied that its probative value is substantially outweighed by the danger of it being unfairly prejudicial. It should not be excluded under s 135 of the Evidence Act.

52.18-52.46

58                  This extract contains footage of Johnny Walker, deceased, talking about the movement of Aboriginal people off the stations. The deceased's daughters were witnesses in the trial, as were his brother and sister. The evidence given in the trial to date has been that the deceased lived and worked on Croydon Station within the claim area. Younger witnesses recalled visiting him there on holidays from Roebourne. There was also evidence that at one time he was the manager at Woodbrook station.

59                  Given the evidence as to the experience of the deceased with station work and life I am satisfied that there is probative value in the evidence which is not substantially outweighed by the danger it would be unfairly prejudicial to the first respondents.

55.08-55.59

60                  This extract is of Yilbie Warrie, deceased, and is relied upon to corroborate evidence given by witnesses for the first applicants regarding the 'Old Reserve' near Roebourne. The Court visited the site during the hearing and heard similar evidence to that in the extract regarding the significance of the three tamarisk trees at the site.

61                  I am satisfied that the evidence should be admitted on this basis upon which it is relied by the first applicants and that it should not excluded by reason of s 135.

1.31.27-1.34.55

62                  This extract is primarily of Yali King, deceased, recounting a story related to Nhangangu-na and Mian-na, sites at which the Court sat and heard evidence. It is interspersed with narration and footage of her son, Woodley King, telling parts of the story. The story would appear to be largely consistent with that given in evidence by Woodley King and his wife Berry Malcolm.

63                  For the first respondents it is contended that the footage of Woodley King should be excluded as hearsay. However this footage is not relied upon for a hearsay purpose (see: s 60 of the Evidence Act). The first applicants only rely on narration and footage of Woodley King to give context, or to assist the Court in following the material showing Yali King.

64                  Subject to the use made of the narration and footage of Woodley King being thus restricted, I am satisfied that the probative value of the material is not substantially outweighed by the danger that it would be unfairly prejudicial to the first respondents or be misleading or confusing, and therefore it should not be excluded under s 135 of the Evidence Act.

1.35.42-1.38.16

65                  This extract shows Lilla Snowball, the deceased mother of Bridget Warrie, talking about the effect of the construction of the Harding River Dam on country and sites. There is also some narration. However, the case for the first applicants relies primarily on the extract for the footage of Lilla Snowball.

66                  According to the evidence given in the trial to date the deceased's brother in law and son, both also deceased, were active in their opposition to the construction of the dam. The evidence of Bridget Warrie was that the protection of sites that were to be affected by the construction of the dam was important to her deceased uncle and brother. She said that this was because that was their 'law' and that her deceased uncle was "real sorry" when the dam was put in.

67                  In this context the statements made by Lilla Snowball have a probative value which is not substantially outweighed by possible unfair prejudice to the first respondents. While the narration may be said to be in emotive terms, the possible prejudice could be minimised if its use was restricted, under s 136, to providing a chronology of the events surrounding the construction of the Harding River Dam, so as to give context to the evidence of the deceased and that of the primary witnesses for the first applicants. It would be open to the first respondents to bring their own evidence regarding this history.

1.38.20-1.44.52

68                  This extract contains a range of material. The first applicants say that the primary purpose of the tender is to show deceased elders Yilbie Warrie and Alan Jacob. They assert that the evidence goes to the maintenance of connection to land, the transmission of traditional knowledge and attempts to secure legal rights to land.

69                  The extract contains direct assertions as to issues which are central to the determination this Court has been asked to make regarding the existence of native title. The probative value of such statements is low and in my view substantially outweighed by the possibility that the first respondents would suffer unfair prejudice by being unable to cross-examine on these central issues.

70                  Similarly, the narration dealing with attempts that have been made to secure legal rights to land seem to go further than the evidence in the trial thus far, which in my view creates a danger that it is unreliable, unless or until a better context is provided for it later in the trial.

71                  I would therefore not admit the whole of the extract. There are, however, parts of this extract which if tendered separately may be admissible, in particular the part containing a song sung by Yilbie Warrie which is corroborative of oral evidence received from Bridget Warrie.

1.46.19-1.42.47

72                  This extract contains footage of Allan Jacob, making general statements that, inter alia, Yindjibarndi people are 'all one'. He is not, as is asserted for the first applicants, largely or only talking about the importance of teaching children.

73                  While the statements appear to corroborate the oral evidence of Allery Sandy regarding the influence of the deceased in the establishment of a language teaching program, the first applicants sought to tender this material on a more general basis.

74                  As with the previous extracts, the statements made by the deceased in the footage go to an issue central to the determination that this Court has been asked to make. As such its probative value is low and substantially outweighed by the risk of prejudice to the respondents arising out of their inability to cross-examine on the issue. It should be excluded pursuant to s 135 of the Evidence Act.

Associate:

Dated: 4 April 2000