Federal Court of Australia

Miller v State of South Australia (Far West Coast Sea Claim) (No 3) [2022] FCA 466

ORDERS

THE COURT ORDERS THAT:

1.    The request of the first and second respondents and the Bunna Laurie Parties for a ruling under s 136 of the Evidence Act 1995 (Cth) in respect of the portions of the expert reports of Mr Robert Graham is declined.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J

1    In this proceeding the applicant seeks a determination of native title in relation to an area of the sea adjacent to the Great Australian Bight off the Far West Coast of South Australia. The trial is continuing. Subject to some rulings on objections, the parties’ evidentiary cases are now closed. Closing submissions are yet to be made.

2    The Court is asked to make a ruling in respect of certain evidence contained in expert reports authored by a witness in the applicant’s case. The reports are those of an anthropologist, Mr Robert Graham, marked Exhibit A21E and A22E. Together they may be referred to as the Graham Reports.

3    Significant portions of the Graham Reports refer to factual information expressed in a hearsay form, that is, by reference to out-of-court representations of fact made orally or in writing to Mr Graham by Aboriginal informants. The representations are in the nature of assertions of fact, the truth of which appears to have been assumed by Mr Graham as part of the factual foundation of his opinions.

4    The hearsay material forming the subject of argument falls within four classes. In the first class are out-of-court representations made by living Aboriginal persons who have given evidence-in-chief by affidavit in this proceeding, being representations on the same topics and to similar effect as that given in their affidavits. In the second class are out-of-court representations made by living Aboriginal witnesses concerning topics that were not canvassed in their affidavit evidence-in-chief. In the third class are out-of-court representations made by Aboriginal persons who have not been called by the applicant or any other party to give evidence on any topic. Included in that class is at least one person who is known by the other parties to have died since his out-of-court representations were made, as well as two persons who are known to be living. The fourth class is a little more ambiguous. It includes out-of-court representations by persons who have not been expressly identified by Mr Graham, typically in passages to the effect that informants have told him things. The evidence of out-of-court representations will be referred to collectively as the Informant Material.

5    The Informant Material is relevant. It is admissible except as otherwise provided for by the Evidence Act 1995 (Cth):  s 56(1)

6    Section 59(1) of the Evidence Act establishes the hearsay rule. It provides:

59 The hearsay rule—exclusion of hearsay evidence

(1)    Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

7    The Informant Material contained in the Graham Reports is prima facie excluded by that rule.

8    The hearsay rule is subject to exceptions, some of which apply to render the Informant Material admissible to prove the truth of the facts asserted by the informants, notwithstanding that the evidence is hearsay in its form. They potentially include s 72 (relating to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group) and s 81 (relating to admissions).

9    Of particular significance is the exception in s 60. It relevantly provides that the hearsay rule does not apply to evidence of a previous representation about an asserted fact that is admitted because it is relevant for a purpose other than proof of the fact. That exception applies whether or not the person who made the representation had personal knowledge of the asserted fact.

10    Section 76(1) of the Evidence Act establishes what is known as the opinion rule. It provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 provides that if a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. It is not disputed that Mr Graham has specialised knowledge based on his training, study or experience as an anthropologist, so satisfying that discrete element of s 79.

11    Section 136 of the Evidence Act provides:

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)    be unfairly prejudicial to a party; or

(b)    be misleading or confusing.

12    The Graham Reports were provisionally admitted into evidence before a series of previously foreshadowed objections to their admissibility were heard and determined. All of the parties acknowledged that they were not disadvantaged by the progress of the trial in that way. None of the parties sought to have the objections ruled upon before the completion of lay evidence or the completion of concurrent sessions of experts. None of them sought a ruling limiting the use of the Informant Material before their evidentiary cases were closed. These reasons relate to a series of objections originally advanced by the State of South Australia, the Commonwealth and four Indigenous respondents referred to as the Bunna Lawrie Parties, based on the same or similar premises. The parties agree that it is convenient for the Court to adopt a global approach to them, so far as that is possible.

13    As originally framed, the objections challenged the admissibility of portions of the Graham Reports themselves (including on the basis that they contained inadmissible hearsay). However, the present position of the respondents is that the Court should make a ruling pursuant to s 136 of the Evidence Act limiting the use that may be made of the Informant Material so as to preclude their use for a hearsay purpose. The respondents contend that it would be prejudicial to them if evidence of the out-of-court statements was used for the purpose of proving their truth.

14    The respondents’ position proceeds from an acceptance that the Informant Material contained within the Graham Reports is relevant and admissible to explain the assumptions upon which the opinions contained in the Graham Reports are based, notwithstanding that it is hearsay in nature. That position is in accordance with authority, as discussed below.

15    The applicant’s position is that a ruling pursuant to s 136 of the Evidence Act is neither appropriate nor necessary. It submits that the hearsay nature of the Informant Material is and should be a matter going only to weight.

16    In considering Counsel’s submissions it is important to keep in mind the distinction between the admissibility of opinion evidence, the admissibility of evidence going to prove the truth of assumed facts upon which the opinion is based, and issues affecting the weight that might be afforded evidence falling within either category.

17    It is common ground that s 79 of the Evidence Act does not incorporate what is known at common law as the “basis rule”:  see Neowarra v Western Australia (No 1) (2003) 134 FCR 208 at [22] – [27] and the authorities there cited. That rule had three aspects to it, conveniently summarised S Odgers in his commentary of Uniform Evidence Law (16th ed, Law Book Co, 2021) (at [EA.79.240]:

…  Thus, the expert must disclose the facts (usually assumed) upon which the opinion is based, [Bugg v Day (1949) 79 CLR 442 at 462 per Dixon J; R v Fowler (1985) 39 SASR 440; R v Lewis (1987) 20 A Crim R 267; 88 FLR 104 at 271 (A Crim R); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 348] the facts upon which the opinion is based must be capable of proof by admissible evidence [Ramsay v Watson (1961) 108 CLR 642 at 649; Paric v John Holland (Constructions Pty Ltd) (1985) 59 ALJR 844; 62 ALR 85; [1985] HCA 58 at 846] and evidence must be admitted to prove the assumed facts upon which the opinion is based [Ramsay v Watson (1961) 108 CLR 642 at 649; Paric v John Holland (Constructions Pty Ltd) (1985) 59 ALJR 844; 62 ALR 85; [1985] HCA 58 at 846 (ALR); Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; 85 ALRJ 694; [2011] HCA 21, Heydon J at [66]–[90]. See also R v Perry (1990) 49 A Crim R 243 (NSW CCA); Stefan v Ruban [1966] 2 NSWLR 622 at 626 and 630-631; Sych v Hunter (1974) 8 SASR 118 at 119]

18    As was said in Neowarra (at [23]):

While the legislation does not incorporate a ‘basis rule’, an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the Court to determine whether the opinion is wholly or substantially based on the expert’s specialised knowledge which in turn is based on training, study or experience.  …

19    See also Harrington-Smith v Western Australia (2003) 130 FCR 424 at [25].

20    The interrelation between ss 60, 79 and 136 of the Evidence Act is conveniently summarised by Sundberg J in Neowarra as follows:

37    Because any common law basis rule has not been imported into s 79, so that at the stage of admissibility there is no requirement that the facts upon which the expert’s opinion has been formed be supported by admissible evidence, the fact that an expert’s opinion is based in whole or in part on a ‘fact’ supported by hearsay, is not a ground upon which the opinion must be rejected. In any event, an expert’s opinion that is based on ‘facts’ supported by hearsay is prima facie admissible under s 60.

38    Subject to the application of ss 135 and 136, hearsay material on which an expert’s opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion (‘a purpose other than proof of the fact intended to be asserted by the representation’). If it qualifies, it can then be used as proof of the fact intended to be asserted. That is the view that has been taken in relation to expert evidence in Daniel, Quick v Stoland, Lardil and Harrington-Smith v Western Australia (2003) 130 FCR 424. See also Welsh v The Queen at 368 and Lee v The Queen at 604. The weight to be accorded to that evidence is a matter for the Court.

21    The circumstance that the Informant Material is relevant and admissible as disclosing the factual assumption upon which the opinions in the Graham Reports are based has the consequence that the exception to the hearsay rule in s 60 of the Evidence Act is enlivened. The effect of s 60 is that evidence of the out-of-court representations of fact constituting the Informant Material contained in the Graham Reports is admissible to prove the truth of those same asserted facts.

22    The hearsay nature of the Informant Material may of course affect the Court’s assessment of the weight to be given to the opinions of Mr Graham, as well as the weight to be afforded to the Informant Material as evidence going directly to questions of fact in issue in the proceeding. Without having the benefit of full submissions on the topic, my preliminary view is that less weight should be given to hearsay assertions by persons who were available to give evidence on oath on the subject matter of the out-of-court representations they made to Mr Graham, but who have not been so called to give evidence on that subject matter.

23    The hearsay nature of Mr Graham’s source materials may also affect the weight to be afforded to the opinions he expresses by reference to it. Questions of weight may be compounded where the manner of the author’s drafting makes it difficult to discern whether he or she is advancing a factual proposition assuming the existence of particular underlying facts, as opposed to expressing his or her own opinion:  Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [11]. Such matters affect the Court’s assessment of the weight to be afforded the opinions contained in the Graham Reports insofar as they are based on the Informant Material, and may also go to their admissibility.

24    In Harrington-Smith, Lindgren J faced the unenviable task of dealing with 1,426 objections to expert reports in the course of a trial for the determination of native title. His Honour observed that there had been little or no attempt in the reports to address in a systemic way the requirements for the admissibility of an expert opinion. Counsel in that case had protested that to meet the requirements for admissibility of an expert opinion, it would be necessary for lawyers to become involved in the writing of the expert reports, and asserted that the reports were written in a way in which “those qualified in the particular discipline are accustomed to write”. Justice Lindgren (with respect properly) gave those submissions short shrift (at [19]):

Lawyers should be involved in the writing of reports by experts:  not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert’s particular field of scholarship. So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in s 82(1) of the NT Act, the requirements of s 79 (and of s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence.

(original emphasis)

25    His Honour went on to say that in many instances the reports before him did not clearly expose the reasoning leading to the opinion arrived at, nor did they distinguish between the assumed facts upon which an opinion is based and the opinion itself.

26    Many of the objections originally advanced in connection with the Graham Reports were founded on a failure by the author to specify the factual basis upon which his opinions were expressed. The applicant responded to those objections by drafting at least 75 new “footnotes” by which Mr Graham referenced the factual material forming the basis of his opinions. Many of the new “footnotes” contain references to source material contained in another exhibit (discussed below) without setting out its substantive content. The respondents complain that the many new footnotes appear to refer to hearsay material emanating from the same informants and as such should be encompassed within any ruling the Court may make under s 136 in respect of the Informant Material already contained (by reference or express recitation) in the Graham Reports.

27    Before turning to the requested ruling, it is convenient to note three further contextual matters affecting the admissibility and weight of the Graham Reports (and other reports having the same or similar qualities).

28    First, it should be emphasised that the evidence given by an expert need not necessarily be solely in the nature of “opinion” evidence. As Selway J observed in Gumana v Northern Territory (2005) 141 FCR 457, much will depend on the nature of the expert and the nature of the evidence (at [156]):

…  For example, where the evidence of an anthropologist is the direct consequence of significant field work over a lengthy period, it may not be evidence of opinion at all. Rather, it may be the direct evidence of the observations that the anthropologist has made. Similar evidence might be given by others who have made similar observations:  see Ritz Hotel Ltd v Charles of the Ritz Ltd (No 7) (1987) 14 NSWLR 104. This would include the claimants themselves, of course, but might also include missionaries, teachers, or those who have lived or worked with the claimants over a long period and are in a position to give useful evidence of what they have observed. Those observations, insofar as they consist of what the relevant person had observed are admissible to the extent that they are relevant.

29    His Honour went on to say that where the evidence of an anthropologist is derived from what the person has been told, the issue is more complicated:  at [157]. Speaking before the enactment of s 72 of the Evidence Act, Selway J identified a number of bases upon which evidence of Aboriginal law and custom may be admitted either as an exception to the hearsay rule or characterised in such a way that the hearsay rule would not apply in any event. By way of example, his Honour identified that evidence of an anthropologist based upon long term field work with a claimant group may not be opinion evidence at all but rather direct evidence of fact. The respondents in the present case submit that the field work undertaken by Mr Graham in relation to the claim group in this proceeding does not meet that description.

30    I am satisfied that the Informant Material is principally evidence of what Mr Graham was told by members of the claim group and in large part is not material otherwise within Mr Graham’s personal knowledge. I say in “large part” because in some instances Mr Graham deposes to observing the Aboriginal informants demonstrating or showing things to him and some of that reportage may well constitute direct evidence of fact, rather than evidence of an opinion as defined in s 76. I do not understand the respondents’ requested ruling to extend to the few instances in which Mr Graham records a direct observation of fact and so will say nothing more on that topic for now.

31    Second, in addition to the Informant Material as it appears in the Graham Reports, there exist discrete written records of the conversations the Aboriginal informants had with Mr Graham (recorded in his field notes) and of prior written statements otherwise provided to him. The Court understands that material to be contained in a large exhibit which includes all of the material referred to by Mr Graham and other expert witnesses in the preparation of the many expert reports adduced in this proceeding, marked Exhibit S25. The material contained in Exhibit S25 was admitted into evidence on the basis that it comprised the material to which all of the parties’ experts had referred in the preparation of their reports. That material was admitted to enable the Court to be satisfied that the source material referenced in the expert reports was faithfully reproduced. The Court will not read that material unless it is necessary to resolve any contentious issue as to the material upon which the experts based their opinions. Unless it is demonstrated otherwise, the Court will proceed on the basis that the Informant Material referred to in the Graham Reports is based on material recorded in Exhibit S25. However, references in these reasons to the Informant Material should not be confused with the material contained in Exhibit S25, as they are different things.

32    Third, the ruling presently under consideration does not extend to other hearsay material relied upon by Mr Graham in the preparation of his report, including his references to the works of other anthropologists, historians or genealogists of that class of material. The Full Court in Bodney v Bennell (2008) 167 FCR 84 said:

92    Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed) Vol 2, pp 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, ‘would be to ignore the accepted methods of professional work and to insist on finical and impossible standards’. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court:  see generally Borowski [1966] VR at 385-387; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35; H v Schering Chemicals Ltd [1983] 1 WLR 143 at 148-149; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) 214 ALR 608 at [8].

93    There is nothing in the Evidence Act that displaces this body of law. The Australian Law Reform Commission, on whose report the Act was based, said:

Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court’s assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose — eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert’s opinion — will be admissible also as evidence of the facts stated.

See Interim Report No 26, Evidence (1985) Vol 1, para 685.

SUBMISSIONS

The respondents’ position

33    Counsel for the State submitted that Mr Graham refers to information provided to him by contemporary informants in two ways:  he either names the relevant informant and extracts and quotes from their written statement (or presumably from his field notes of conversations with them), or he states a factual proposition coupled with a statement to the effect that the facts are consistent with things said to him by informants generally. In the latter instances, the informants are not named. To some extent the failure to identify the name of the informant or source of the information may be remedied by the new footnotes referred to earlier in these reasons.

34    Counsel confirmed that the State did not take issue with the Informant Material being used to show the information upon which Mr Graham based his opinion. Nor did the State take issue with the principles stated by the Full Court in Bodney v Bennell, nor with the proposition that s 79 of the Evidence Act did not incorporate the common law “basis” rule. Counsel submitted that nothing in Bodney v Bennell (or other cases on which the applicant might rely) disposed of the necessity that the underlying facts upon which an expert opinion is based must be proven at trial in order for the opinion to have real forensic value. Counsel referred to Honeysett v The Queen (2014) 253 CLR 122 (at [23]) and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (at [37]). The issue before the Court, Counsel acknowledged, was the identification of the evidentiary material that may be employed for the purpose of proving the truth of the asserted facts.

35    Counsel submitted that the work undertaken by Mr Graham in preparing his report was not significant field work such that his assertions of fact might be direct evidence of the kind discussed by Selway J in Gumana. Counsel pointed out that Mr Graham had been requested to prepare the report in January 2019 and that any work that he did with members of the claim group was entirely in response to this litigation. It was not a case in which an anthropologist had worked over a number of years with Aboriginal persons outside of a litigious context.

36    Counsel acknowledged that some of the out-of-court representations constituting the Informant Material may fall within the exception to the hearsay rule in s 72 of the Evidence Act. Whilst that was the only exception to which Counsel originally referred, it was then acknowledged that the exception in s 60 applied, such that (in the absence of a ruling under s 136) the Informant Material was admissible for a hearsay purpose.

37    Counsel submitted that it was inconsistent with the programming orders made in the advance of the trial for the Informant Material to be used for that additional purpose. The relevant orders were made by White J on 4 December 2020, as follows:

1.    If any of the Applicant or the Indigenous Respondent Parties wish to expand or modify the evidence in chief contained in the affidavits filed and served pursuant to the Court’s previous orders, or to provide affidavits from further witnesses, then they are, by 31 March 2021, to file and serve the further affidavits, noting that either the witnesses’ present affidavit or any affidavit filed pursuant to this order are to comprise the witnesses’ entire evidence in chief, even if that means repeating matters to which the witness has deposed in a previous affidavit.

…

3.    Without the leave of the Court, no party may lead evidence at the trial from a non-expert witness unless an affidavit containing the evidence in chief to be given by that witness has been filed and served pursuant to the Court’s previous orders or pursuant to Order 1 above.

38    Counsel submitted that, in the absence of an application for leave, the applicant should not be permitted to tender the Graham Reports as to do so would subvert the Court’s directions as to how evidence-in-chief was to be adduced at the trial. Counsel submitted that the programing orders (coupled with the applicant’s failure to apply for leave) gave rise to prejudice because the State had proceeded on the basis that the lay evidence-in-chief was to be adduced in affidavit form, whereas now it was said by the applicant that the Court should have regard to a larger body of admissible out-of-court representations previously made by the Aboriginal informants. Counsel submitted that a hearsay objection to the Informant Material had been raised well in advance of the trial, and yet the applicants had not sought to have its lay witnesses adopt the truth of the statements they had previously made to Mr Graham.

39    In relation to those informants who have died, Counsel referred to s 63 of the Evidence Act. It is to the effect that the hearsay rule does not apply to an out-of-court statement made by a person who has since died. The exception in s 63 does not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the intention to adduce the evidence:  Evidence Act, s 67. Counsel submitted that the State had received notice about the applicant’s intended reliance on s 63 in relation to the affidavit of only one person (Mr Penong Miller).

40    Counsel referred to one example in which an out-of-court statement made by an informant was inconsistent with the affidavit evidence that the informant gave in his evidence-in-chief. Counsel also referred (albeit generically) to instances in which the applicant’s lay witnesses conveyed to Mr Graham a broader array of asserted facts to those asserted in their affidavit evidence-in-chief.

41    Counsel submitted that the judgment of the Full Court in Bodney v Bennell was concerned with the question of whether experts can base their opinions upon a corpus of expert knowledge including the prior writings of other experts. However, the issue presently before the Court raised a different issue, namely whether objective facts in issue in the proceeding could be proven on the basis of out-of-court statements made by lay persons to the expert in circumstances where procedural orders had prescribed the manner and form in which their evidence-in-chief was to be adduced. The ruling under s 136 was required in order to prevent the applicant adducing evidence-in-chief by a means different to that which had been ordered, so it was submitted.

42    Counsel confirmed that the State was not seeking an equivalent ruling in respect of dated ethnographic material or the corpus of knowledge and prior writings of anthropologists more generally. The ruling sought by the State was confined to restricting the use of out-of-court representations of Aboriginal informants who were available to give evidence in the proceeding and those deceased informants in respect of whom no notice under s 67 of the Evidence Act had been given.

43    The Commonwealth adopted the State’s submissions, reinforcing the legal context in which Bodney v Bednell and Gumana were decided.

44    Counsel for the Bunna Lawrie Parties also adopted the State’s submissions, adding that the use to which the applicant sought to put the Informant Material created a circularity problem in the sense that the Graham Reports were “self-proving”. Counsel informed the Court that at an earlier case management hearing Counsel had himself raised the topic of whether his own clients (as witnesses) might be granted leave to adopt (on oath) the truth of the statements they had made to the expert witnesses briefed in their own case, but the parties had not been in accord on the issue and he had taken the matter no further. Counsel acknowledged that the ruling sought by the Bunna Lawrie Parties may well have an adverse effect on the conduct of their own case.

45    Counsel submitted that from at least the time that objections were notified, the applicant was on notice that if evidence of a primary fact was not contained in an affidavit it could not be proven by including an assertion of it in an expert report or in the file notes of the expert. Counsel submitted that a ruling under s 136 should relate to out-of-court statements referred to in the Graham Reports, whether or not the identity of the informant was named or presently living.

The applicant’s position

46    For the applicant it was submitted that the principles stated in Bodney v Bennell were not confined to the question of whether an anthropologist may draw on the reputable writings of other experts.

47    It was submitted that it was in the nature of anthropology to engage in “participant observation” and that anthropologists were in the best position to obtain information from living informants, to analyse it and to distil it for the Court. Counsel submitted there was no danger that the Court might be misled because all of the source information was available within Exhibit S25. Inconsistencies between the source information and the reportage of it within the expert reports could be the subject of argument and the Court could make its assessment as to the reliability of the Informant Material, having regard to their source.

48    Counsel submitted that if the respondent parties wished to take issue with any inconsistency between the sworn testimony of a witness and prior out-of-court statements by the same person, then it was incumbent upon the respondents to draw the inconsistency to the attention of the witness and afford them an opportunity to explain it.

49    In relation to the orders of White J, Counsel for the applicant said that parties to a native title proceeding (at least in more recent times) were required to conduct litigation more efficiently and to act in accordance with that obligation under s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Counsel submitted that it was not feasible to call all possible witnesses on all topics and that an applicant party must make a forensic decision as to which witnesses to call. Counsel submitted that it would be a “waste of the Court’s time” to insist on repetition of facts in every affidavit of every lay witness. The effect of these submissions was that at least in some instances it was considered by the applicant’s advisers to be more efficient to adduce evidence going to primary facts by relying on evidence of out-of-court statements (as recorded or referenced in the Graham Reports), rather than to adduce in-court testimony.

50    Counsel submitted that the field notes of Mr Graham were admissible under s 69 of the Evidence Act in any event which provides for a further exception to the hearsay rule in relation to “business records”.

51    Counsel further submitted that it was not appropriate for an anthropological expert to be provided with the affidavits proposed to be relied upon by the applicant at the trial of the action for the purpose of preparing an expert report. Counsel submitted that it was for the expert to undertake “a forensic exercise of his own” within the area of his expertise. Counsel submitted that providing the affidavits of the lay witnesses to the anthropologist might drive him to form opinions or ideas based on evidence that lawyers had gathered.

DISPOSITION

52    I have concluded that the ruling sought by the active respondents should not be made.

53    The Informant Material constitutes evidence of Mr Graham about out-of-court representations made to him for the purpose of the preparation of his report in this litigation. It is that feature of the evidence that attracts the exclusionary hearsay rule. As I have mentioned above, the circumstance that Mr Graham has relied on information of a hearsay nature does not render the evidence of his opinions inadmissible. The circumstance that he has assumed the truth of the out-of-court statements is a matter informing the weight to be afforded his opinions. If the Court is not ultimately satisfied of the asserted facts, his opinions may be afforded very little weight.

54    I am presently concerned with the question of whether the Informant Material should be precluded from use in the substantive proceeding to prove the primary disputed facts.

55    To overcome the hearsay rule in respect of the Informant Material, it is sufficient that the applicant show that one exception to the rule applies. As discussed earlier in these reasons, that exception is to be found in s 60 of the Evidence Act. Section 60 operates so that the Informant Material is admissible for a hearsay purpose, that is, they may be used for the purpose of proving the truth of the out-of-court assertions of fact contained in them.

56    The Bunna Lawrie Parties are correct to describe the Graham Reports as “self-proving” in that limited respect. However, to the extent that there is circularity in that result, it is a legal consequence contemplated by s 60 of the Evidence Act. On its terms, s 60 operates so that evidence that would otherwise be excluded by the hearsay rule is admissible for a hearsay purpose. It does not operate to transform evidence of a hearsay nature into something other than hearsay. Rather, it operates to preclude the operation of an exclusionary rule so as to render admissible that which would otherwise be rendered inadmissible by s 59.

57    The fact that s 60 applies does not alter the weight that is to be afforded the evidence, having regard to its form, content and all manner of factors affecting its reliability or cogency. To ask whether evidence is admissible to prove a disputed fact is one question. Whether the evidence is sufficient to prove the fact is a different question altogether.

58    So far as the admissibility of the Informant Material is concerned, it does not matter whether the requirements of any other exception to the hearsay rule are fulfilled. One exception is enough. For completeness, however, I reject the applicant’s submission that the business records exception in s 69 would otherwise apply. That exception does not extend to representations obtained in contemplation of, or in connection with, this litigation:  Evidence Act, s 69(3). I accept the State’s submission that the exception in s 72 might also apply to some portions of the Informant Material.

59    The Court’s discretion under s 136 of the Evidence Act is not at large. The rulings previously made under that provision in this matter have thus far been at the joint request of the parties in a spirit of cooperation and pragmatism. However, a contested application for a ruling must be decided with careful regard to the statutory text. The Court must be satisfied that there is a danger that a particular use of the evidence (here a hearsay use) might be either (a) unfairly prejudicial to a party, or (b) misleading or confusing.

60    The applicant’s submission that there is no danger of the Court being misled or confused are directed to an issue that is not seriously contested. The respondents did not rely on that limb of s 136 of the Evidence Act. On that uncontroversial topic, I am satisfied that in the performance of its fact-finding task, the Court is qualified to assess the weight that should be afforded the hearsay evidence, having regard to all of the surrounding circumstances. The use of the Informant Material for a hearsay purpose would not mislead or confuse the Court. The Court is under no misapprehension as to the various matters that may affect the weight of the evidence and the consequences that might follow for its assessment of the forensic value of any expert opinions based upon it.

61    I do not accept the submission that it would have been inappropriate to inform Mr Graham of the facts asserted in the applicant’s lay affidavits so that he might express an opinion based on those facts. There is nothing secret about those facts, and it is not correct to say that they are the work of “lawyers” that might improperly influence the expert in the formation of his or her opinion. The affidavits contained the things the lay witnesses wished to say in support of the applicant’s case. A brief to an expert for the purposes of legal proceedings is a request for opinion evidence, made in a litigious context where the rules of evidence apply. It is not an abstract or academic exercise. Without the benefit of full submissions on the topic, it seems to me that value of an expert opinion may be significantly diminished if it is not closely aligned with the applicant’s witness testimony on the primary facts. The submissions on that topic go to the weight of the Informant Material and the opinions expressed by reference to them, but do not weigh heavily in my assessment as to whether a ruling under s 136 of the Evidence Act should be made.

62    It remains to consider whether use of the Informant Material for a hearsay purpose would be unfairly prejudicial to the respondent parties.

63    The orders of White J made it necessary for the applicant’s legal representatives to make important forensic choices. A choice had to be made as to the evidence that should be adduced through the sworn in-court testimony of lay witnesses and the evidence that might be adduced in other forms with a view to discharging the applicant’s onus of proof to the requisite standard.

64    In my view, the orders confining the mode of evidence-in-chief should be understood as referring to evidence in the nature of in-court witness testimony. They did not operate to confine the applicant in its choice of documents that might otherwise constitute admissible evidence in their own right, independent of the sworn testimony of its lay witnesses (whether going to the same topics traversed in their sworn testimony or not). In respect of some factual topics, it appears that the applicant may have elected to rely only on documents containing hearsay statements. The applicant (correctly) points to s 60 as the mechanism by which the documents are admissible as proof of the facts asserted in them. It was for the applicant to consider whether evidence in that form will be sufficient to prove the necessary primary facts, particularly in respect of topics where sworn testimony from the same informants could have been given but has not been. Of themselves I do not consider these matters give rise to unfair prejudice to the respondents, nor do I consider the use of the Informant Material for a hearsay purpose to undermine the Court’s orders. The orders did not preclude the applicant from relying on s 60 of the Evidence Act as an exception to the hearsay rule in respect of documentary material if that is how it chose to present its evidentiary case.

65    It is not illegitimate for an anthropologist to base their opinions on information gathered by them in the course of field work. However, where the field work comprises the gathering of oral or written statements made in contemplation of litigation, then I am presently at a loss to identify how the anthropologist is in any better position to assess the truthfulness of the out-of-court statements or to understand their ordinary meaning. I nonetheless consider such matters give rise to no unfair prejudice to the respondents.

66    Similarly, to the extent that the applicant submits that its obligation under s 37M of the FCA Act explains its forensic choices in this proceeding, the contention can be advanced in closing submissions if it be relevant. It is not immediately apparent how any efficiency has been gained by Mr Graham relying on hearsay statements from the Aboriginal informants which are different to or more extensive than evidence the same informants have given under oath. However, these considerations do not evidence unfair prejudice to the respondents.

67    As I have mentioned, the orders of White J did not limit the documentary material that might be admitted independently of the evidence-in-chief contained in the lay affidavits. Documentary evidence of out-of-court representations is not to be regarded as evidence-in-chief within the meaning of the orders. As I have mentioned, all parties acceded to trial program in which the lay evidence was closed before the Court made rulings of the kind now sought. In so acceding, all parties assumed the risk that the submissions advanced by them concerning the interrelation of ss 59, 60 and 136 of the Evidence Act might not be accepted. It was open to the respondents to apply for a ruling under s 136 at an earlier time if the outcome of the application might have affected the presentation of their cases at trial.

68    It is not apparent that the respondents would have conducted their own evidentiary cases differently if they had appreciated that the Informant Material could or would be relied upon as evidence of the truth of the facts asserted to Mr Graham. The orders of White J could not have given rise to a reasonable expectation that s 60 would not apply on its terms to the Informant Material contained in the Graham Reports.

69    By declining the respondents’ request for the s 136 ruling I should not be understood to preclude them from agitating those objections based on any asserted failure of an expert report to otherwise fulfil the requirements of s 79 of the Evidence Act, including on the basis that the opinions in the Graham Reports are not sufficiently distinguished from the underlying facts upon which they are based, as explained in the authorities above. I consider any remnant objections of that kind may be agitated in the course of closing submissions, provided that the objecting parties put other interested parties on notice of those objections that remain pressed.

Associate:

Dated:    29 April 2022

SCHEDULE OF PARTIES