FEDERAL COURT OF AUSTRALIA

Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to confer and provide a short minute of order giving effect to these reasons within 7 days.

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

REASONS FOR JUDGMENT

PERRAM J:

1. INTRODUCTION

1    This case concerns the provenance of an archaeological artefact (‘the Artefact’). The Artefact, which is made from black basalt, was purchased online on or around 5 June 2020 by the Applicant, an Australian company, for USD$17,340.00 from the Artemis Gallery in Colorado. It was shipped by FedEx to Melbourne on or about 24 June 2020. Upon its entry into Australia it was intercepted by officials acting under the Customs Act 1901 (Cth) (‘Customs Act’) and retained by them. Documentation accompanying the Artefact suggested that it was pre-Columbian in origin and came from Tiwanaku, an ancient city the monumental ruins of which lie in Bolivia near Lake Titicaca. There followed after its interception a period during which the Commonwealth Office for the Arts considered whether it should be seized under the provisions of the Protection of Movable Cultural Heritage Act 1986 (Cth) (‘the Act’). This period of reflection appears to have involved consultation through diplomatic channels with the government of Bolivia.

2    The Artefact is undoubtedly a fine piece:

3    Section 34 of the Act authorises an inspector appointed under it to seize ‘a protected object that the inspector believes on reasonable grounds to be forfeited’ which by s 27(1) includes being liable to forfeiture. On 17 May 2021, an official acting under s 203T of the Customs Act delivered the Artefact to an inspector appointed under the Act. By s 27(2) this was taken to have involved the seizure of the Artefact by the inspector. At the time of this deemed seizure it is not in dispute that within the meaning of s 34 the inspector held reasonable grounds for believing the Artefact to be a ‘protected object’. Section 37 authorises the owner of an object which has been seized by an inspector to apply to a court of competent jurisdiction for an order against the Commonwealth that the object is not liable to be forfeited. On 16 June 2021 the Applicant commenced the present proceeding pursuant to s 37.

4    The outcome of the proceeding turns on whether the Artefact is liable to forfeiture because of the operation of s 14(1) of the Act. Section 14 provides:

14    Unlawful imports

(1)    Where:

(a)    a protected object of a foreign country has been exported from that country;

(b)    the export was prohibited by a law of that country relating to cultural property; and

(c)    the object is imported;

the object is liable to forfeiture.

(2)    Where a person imports an object, knowing that:

(a)    the object is a protected object of a foreign country that has been exported from that country; and

(b)    the export was prohibited by a law of that country relating to cultural property;

the person commits an offence.

Penalty:

(a)    if the person is a natural person—imprisonment for a period not exceeding 5 years or a fine not exceeding 1,000 penalty units, or both; or

(b)    if the person is a body corporate—a fine not exceeding 2,000 penalty units.

(3)    This section does not apply in relation to the importation of an object if:

(a)    the importation takes place under an agreement between:

(i)    the Commonwealth, a State, a Territory, a principal collecting institution or an exhibition co-ordinator; and

(ii)    any other person or body (including a government); and

(b)    the agreement provides for the object to be loaned, for a period not exceeding 2 years, to the Commonwealth, State, Territory, principal collecting institution or exhibition co-ordinator, as the case may be, for the purpose of its public exhibition within Australia.

(4)    In subsection (3):

exhibition co-ordinator means a body that arranges for the conducting in Australia of public exhibitions of objects from collections outside Australia, and that achieves this by, from time to time:

(a)    entering into an agreement with a person or body (including a government) for the importation of such objects on loan; and

(b)    entering into an agreement with the Commonwealth, a State or a Territory under which the Commonwealth, State or Territory agrees to compensate the person or body referred to in paragraph (a) for any loss of or damage to the objects arising from, or connected with, the carrying out of the agreement referred to in that paragraph or the public exhibition of the objects in Australia.

5    The parties agree that the Commonwealth bears the legal onus of proving on the balance of probabilities that s 14(1) is enlivened. The Commonwealth seeks to discharge its legal onus by demonstrating that: (a) the Artefact is part of the movable cultural heritage of Bolivia and hence, by s 3, a ‘protected object of a foreign country’; and (b) it was removed unlawfully from Bolivia. The parties also agree two facts: first, that the Artefact must have been removed from Bolivia prior to 1960; and second, under Bolivian law it only became unlawful to remove objects from the ruins at Tiwanaku (or the islands in the Bolivian part of Lake Titicaca) from Bolivia after 3 October 1906.

6    There are three issues between the parties, two factual and one legal. The first factual question is whether the Commonwealth can prove on the balance of probabilities that the Artefact is part of the movable cultural heritage of Bolivia. To prove this the Commonwealth seeks to demonstrate that the Artefact was made by the Tiwanaku at or near the ancient city of Tiwanaku.

7    The second factual question, which proceeds on the assumption that the Artefact was made by the Tiwanaku at Tiwanaku, is whether the Commonwealth has succeeded in demonstrating that it was removed from Bolivia after 1906 when it became illegal to do so. The third issue, which is legal in nature, arises from the Applicant’s contention that s 14(1) is only enlivened when the object to which it refers was removed from the foreign country after the commencement of the Act; in this case, 1 July 1987. If this be correct, then the Applicant is entitled to succeed because the object was removed from Bolivia before 1960.

2. THE STANDARD OF PROOF IN CIVIL LITIGATION

8    It is useful to begin by framing the nature of the inquiry at hand and, in particular, to identify what must be proved and by whom in a civil case such as the present. Section 37(3)(b) of the Act requires the Court to determine ‘on a balance of probabilities’ whether the Artefact is liable to forfeiture under s 14(1). In turn, this requires the Court to determine at the same civil standard whether the Artefact is a ‘protected object of a foreign country’ which, by s 3, means that the Court must determine whether it forms ‘part of the movable cultural heritage of a foreign country’. Because this is a civil trial in which the issues are framed by the parties, the Court’s function is to determine whether it accepts the case on that question which has been advanced by the Commonwealth. That case is that the Artefact: (a) was made by the Tiwanaku; (b) forms part of the movable cultural heritage of Bolivia; (c) originates from or near the monumental ruins at Tiwanaku; and (d) was removed from Bolivia contrary to Bolivian laws relating to cultural property.

9    If the Commonwealth establishes that the Artefact was made by the Tiwanaku at or near the ruins of Tiwanaku then the Applicant accepts that it is part of the movable cultural heritage of Bolivia. Thus, although there was a body of evidence at trial concerned with the cultural significance of the Artefact to modern day Bolivia this was not ultimately contested and other than to note this evidence it is not necessary to traverse it. As I have already noted, the parties also agreed that a Bolivian statute entitled ‘Law of Property of the Nation, Ruins of Tiahuanaco and Lake Titicaca’ of 3 October 1906 enacted a prohibition on the export from Bolivia of cultural objects originating from the ruins of Tiwanaku or Lake Titicaca. The reference to Lake Titicaca is of some importance because there was a suggestion in the evidence that the Artefact may have come from the Island of the Sun which is in the Bolivian portion of the lake and governed by the statute. This topic was related to a more general exploration of other islands in the lake which lie in Peru, specifically the island of Tikonata and, more tangentially, the Isla Esteves. I will return to this topic later in these reasons.

10    The Commonwealth’s case that the Artefact was made by the Tiwanaku at or near Tiwanaku and exported from Bolivia after 1906 involves indirect and circumstantial evidence. As to whether the Artefact was made by the Tiwanaku the Commonwealth relies on its age, its apparent method of manufacture and certain of its iconographic and morphological features which it says are typical of the Tiwanaku. The iconographic features of the Artefact consist of the artistic depictions it bears whilst the issue of morphology is concerned with its shape and form.

11    As to whether the Artefact was manufactured at Tiwanaku the Commonwealth relies on: the degree to which fine stonework was carried out by the Tiwanaku at the city of Tiwanaku rather than at other Tiwanaku sites in Peru and Chile; the fact that the Artefact is made from black basalt; the propinquity of Tiwanaku to two basalt quarries; and the fact that no other basalt object made by the Tiwanaku has ever been recovered from any other Tiwanaku site apart from Tiwanaku and certainly not from sites lying outside the present territorial confines of Bolivia.

12    As to whether the Artefact was removed from Tiwanaku after 3 October 1906 the Commonwealth puts forward two alternate hypotheses which between them it says are more likely than not: first, that it was excavated by an archaeologist, Dr Eduardo Casanova, from one of 25 pits dug in the cemetery area of Tiwanaku in 1934 and conveyed by train to Buenos Aires; or, second, that it was removed from Bolivia in or around 1950, falling victim to the significant surge in the looting of Tiwanaku artefacts during the late 1940s and 1950s until this was brought under control by the Bolivian government. The surge in the demand for pre-Columbian artefacts that created this window of desecration was an international phenomenon which afflicted most of South America at the time and was caused by the popularisation of pre-Columbian art by artists such as Pablo Picasso and Henry Moore.

13    For its part, the Applicant puts in the Commonwealth’s path an array of alternate competing hypotheses. Whilst the Artefact displays some elements which may indicate that the person who manufactured it was familiar with Tiwanaku culture, the arrangement of these elements is unprecedented in the archaeological record and could on one view suggest that the person lacked an actual understanding of the canon of Tiwanaku art and tradition. The Applicant’s initial position was that the Artefact was a modern fake or pastiche crudely assembled from at least two pieces of basalt but this case was abandoned in the face of scientific evidence which showed that the Artefact was at least several hundred years old and made from a single piece of basalt.

14    The Applicant disputes the Commonwealth’s contention that basalt objects made by the Tiwanaku have only ever been recovered from the city of Tiwanaku and points particularly to a basalt object in the Ethnological Museum of Berlin which can be shown to have been purchased by a doctor in 1888 at the city of Puno on the Peruvian side of Lake Titicaca. This object was a recurrent subject of discussion in this litigation and I will refer to it as ‘the Berlin Object’, postponing more detailed discussion of it for now. The Applicant says that even if the Artefact was made by the Tiwanaku it could have been made at Tiwanaku sites in the Moquegua Valley in Peru or at the oasis town of San Pedro de Atacama which is in the Atacama Desert in Chile (and hence would not have been subject to removal from Bolivia at any point and could not therefore form part of the movable cultural heritage of Bolivia). Although not advanced in a very developed form, the Applicant also hints at the possibility that the Artefact may have been made by some other pre-Columbian civilisation.

15    In the event that the Court concludes that the Artefact was made by the Tiwanaku at Tiwanaku the Applicant also disputes the Commonwealth’s contention that it was removed from Bolivia after 1906. Whilst the Commonwealth advances the two hypotheses I have referred to above, the Applicant advances an array of hypotheses to demonstrate the opposite. Some of these were more developed than others. For example, the Applicant posits the possibility that the Artefact could have been: (a) transported by the Tiwanaku themselves by caravans of llama to the Tiwanaku sites in the Moquegua Valley or San Pedro de Atacama in the course of exchanges of ritual goods or trade; (b) transported by the Tiwanaku to the sites in the Moquegua Valley and there exchanged with another culture also dwelling in the Valley at that time, the Wari; (c) removed from Tiwanaku by some other culture such as the Inca or the Aztec; (d) looted by treasure hunters during the Colonial Period following the Spanish Conquest; or (e) removed by archaeologists or collectors during the 19th century. There are other lesser hypotheses, too.

16    It will thus be seen that the case calls for findings not only about conventional facts such as the material from which the Artefact is made and its age but also ancient and modern historical facts proved indirectly from circumstantial matters. These are undoubtedly unusual facts to be traversed in a court case but they are to be assessed in the same manner as in any other civil trial.

17    Where the fact is an historical fact the civil standard requires a court to feel actual persuasion that the occurrence of the fact is more likely than not. Thus a court will not be satisfied that a coin tossed on 1 January 1900 came up heads. This underscores the distinction between the unknown and unknowable truth of historical events and the end to which civil litigation is directed which is the quelling of disputes between parties about what happened in the past by reference to some standard which society at large views as legitimate. At one time the legitimacy of the civil standard was supplied by the ancient practices of the common law but it now finds legislative embodiment in s 140(1) of the Evidence Act 1995 (Cth) (‘Evidence Act’). It requires a fact to be found proved if a court ‘is satisfied that the case has been proved on the balance of probabilities’ and this standard is, of course, specifically recognised in forfeiture proceedings under the Act in s 37(3)(b).

18    Indeed, the Applicant explicitly draws attention to the fact that s 14(1) operates as a forfeiture provision and submits that this should be brought to account in the process of fact finding. It observes, with respect correctly, that s 140(2) of the Evidence Act provides that the Court may, in determining whether it is satisfied that a case has been proved on the balance of probabilities, take into account the nature of the action, the nature of the subject-matter of the proceeding and the gravity of the matters alleged. Two elements of this are relevant. First, the nature of the action is a civil forfeiture proceeding which has the potential to result in the confiscation of private property without compensation. Although a prosecution for knowing import under s 14(2) is penal, the liability to forfeiture under s 14(1) is not and its ends are not punitive. Secondly, the nature of the subject matter of the proceeding is an item of private property of significant value. By the end of the trial, the uncontested evidence was that the Artefact was at least several hundred years old and had cost the Applicant USD$17,340.00. Its forfeiture is therefore not a trivial matter. I accept the Applicant’s submission that reasonable satisfaction under s 140(1) in this case should not be produced by inexact proofs, indefinite testimony or indirect inferences: Applicant’s Closing Submissions (‘ACS’) [47], citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.

19    Where, as here, there can be no direct evidence of an historical fact the Court may proceed by the drawing of inferences. But inference does not include pure speculation and the available inferences are confined by the necessity that they should be reasonably open on the evidence. Whether an inference which is reasonably open on the evidence will in fact be drawn turns on whether the Court feels actual persuasion that the occurrence of the fact to be inferred is more likely than not: see, e.g., Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition & Consumer Commission [2007] FCAFC 132; 162 FCR 466 at [31] per Weinberg, Bennett and Rares JJ. In this case for example, the constellation of Tiwanaku motifs on the Artefact, its age and so forth must be such that it is reasonably open to infer that it was made by the Tiwanaku (so that the drawing of the inference that it is Tiwanaku would be lawful) and the Court must feel actual persuasion that it was made by the Tiwanaku.

20    In a civil case where a party seeks to prove a fact indirectly from other circumstances this will involve demonstrating that the hypothesis that the fact occurred is more likely than not. In such a case the Court does not ask whether each of the posited circumstances individually proves that the hypothesis of the occurrence of the fact is more likely than not but rather whether all of the circumstances when considered together do so. Thus one does not ask whether the mere fact of Dr Casanova’s archaeological expedition to Tiwanaku in 1934 shows that it is more likely than not that the Artefact was removed after 1906. Rather, one considers together all of the circumstances and asks whether it is more likely than not that the Artefact was removed from Bolivia after 1906. By way of example, these may include the circumstances that the Artefact was made by the Tiwanaku (if that be proved), that no Tiwanaku objects made from basalt have ever been found outside Tiwanaku, that there is no record of the Artefact before the 1950s and that it appears first to have surfaced in Buenos Aires, which was also the destination of the train transporting the objects excavated by Dr Casanova (this statement is by way of example; the actual circumstances are more detailed than this).

21    The multiple competing hypotheses which must be assessed in this case give rise to a need for special care. Where there are only two competing hypotheses that between them account for the universe of possibilities open on the evidence, a court’s satisfaction that one is more likely than the other will entail that the occurrence of the fact supported by the more likely hypothesis is proved on the civil standard. Whilst it is important not to approach the civil standard in an excessively arithmetical way in terms of numeric probabilities it can be useful to do so to illustrate some consequences in a circumstantial case where multiple hypotheses are in competition with each other. For example, where there are only two competing hypotheses and one is more probable than the other then it must follow that the more likely one is more likely than not. (More formally: if P(A)>P(B) then since P(A)+P(B)=1 then one may validly infer that P(A)>1/2.) But the logic of this breaks down where there are three or more competing hypotheses. If P(A)>P(B)>P(C) then the fact that P(A)+P(B)+P(C)=1 does not warrant the conclusion that P(A)>1/2 as will be seen if P(A)=45%, P(B)=30% and P(C)=25%. Thus the court will only be satisfied that a fact is established if the hypothesis supporting it is more likely than all of the others considered together (i.e. P(A)>(P(B)+P(C))). In particular, the mere fact that one of the hypotheses emerges as more likely than each of the others will not suffice, it must be more likely than all of them.

22    In this case, for example, the Commonwealth’s hypothesis is that the Artefact was removed from Bolivia after 1906 either because it was excavated in 1934 by Dr Casanova or because it was looted in or around 1950 as an unexpected consequence of Picasso’s Primitivism Period. It is not enough for the Commonwealth to show that the hypothesis that the Artefact was removed from Bolivia after 1906 is more likely than each of the hypotheses that the Artefact was taken from Bolivia before 1906 by the Tiwanaku themselves, or exchanged with the Wari or carried away by whatever means by the Incas, the Aztecs, treasure hunters, archaeologists or other collectors. It must show that the hypothesis of removal after 1906 is more likely than all of these other pre-1906 removal hypotheses raised by the evidence put together.

23    Another matter which may be relevant is the existence of other hypotheses not specifically mentioned in the evidence. Generally, in an ordinary case this will not be germane. However, as will be seen the hypotheses in this case range over 1500 years of human history. Across such a stretch of time almost anything is possible. My initial impression was that these unexplored hypotheses should be given no weight. However, in the course of preparing these reasons I have changed my mind about this and have concluded that this aspect of the ordinary course of human affairs must be brought to account: see, eg, Martin v Osborne (1936) 55 CLR 367 at 381 per Evatt J; Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222 per Mahoney JA; Holloway v McFeeters (1956) 94 CLR 470 at 480-481 per Williams, Webb and Taylor JJ. The fact that the subject-matter of this case traverses 1500 years of human history is a relevant circumstance disclosed by the evidence. I will return later in these reasons to how this observation is to be brought to account in the fact finding process.

24    There is another implication of the civil standard of proof and the nature of a civil trial that should be noted. The question for a court conducting a civil trial without a jury is whether the fact has been proved to the requisite standard. In some cases, perhaps many, the court may find that a party has failed to prove fact A because the court is satisfied that not-A is the case. Thus in a case where a party bears the legal onus of proving that two people met and conspired to rig the widget market the court may find, as a fact, that the two people never met and hence could not have rigged that market. But this is not necessary and the court may simply declare itself not satisfied that the party bearing the onus of proof has discharged its burden without making any finding. The court is not bound always to accept the case of one or other of the parties: Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [60], quoting Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955; 2 All ER 712 at 718 per Lord Brandon of Oakbrook.

25    The immediate consequence of this observation is that where the evidence leaves a civil court without a sense of persuasion that a fact has been established, the default rule in civil litigation is that it is the party bearing the legal onus of proving that fact who bears the consequences. But this case involves a consideration of detailed archaeological evidence of an essentially academic kind. Academic debate about the origins of the Artefact differs from the nature of the question in this proceeding. The various fields of human knowledge are bent toward the end of finding the truth. On the other hand, whilst truth is an important value in civil litigation its ascertainment is not its sole end: see, eg, Stephen Gageler, ‘Evidence and Truth’ (2017) 13 The Judicial Review 1 at 4-5; J J Spigelman, ‘Truth and the Law’ in Nye Perram and Rachel Pepper (eds), The Byers Lectures: 2000-2012 (Federation Press, 2012) 232. The system of civil courts is a manifestation of the power of the State which is brought to bear to quell disputes between its subjects in a way which is perceived to be, and so far as possible is, just. Trials are conducted in accordance with specified rules of procedure and evidence and the parties are afforded an opportunity to adduce evidence and to make submissions about the significance of that evidence. The necessary function of quelling the dispute before it requires each court hearing a suit to resolve the case by reference to the evidence and submissions before it and the existence of a legal burden of proof on one of the parties guarantees that every case has an answer.

26    The point for present purposes is that academic debate is never definitively quelled and there is neither a person who corresponds with the function of a court to resolve debates definitively nor correlatively any such concept as the civil standard of proof to assist in that resolution. Thus merely because a court is not satisfied that a fact has been proven to the requisite civil standard does not necessarily entail the resolution of any corresponding academic disagreement about that fact. For example, were the Court to conclude that it was not satisfied that it had been demonstrated that the Artefact was removed from Bolivia after 1906 this would not entail the conclusion that it was not in fact so removed. It would simply record the outcome of a very formal public contest under specified rules between two parties. And, indeed, this is the origin of the word ‘trial’. Put another way, the present litigation gives rise to a contest not an inquiry.

27    With these broad principles in mind, the evidence may be divided into five topics. The first concerns the uncontroversial history of the Artefact since it perhaps first surfaced in Argentina in the 1950s. Most of the evidence on this topic is documentary in nature and it is simply a question of putting the material in order as best one can.

28    The second topic, which is also largely uncontroversial, is scientific in nature and is concerned with the age, composition and likely manner of manufacture of the Artefact. Most of the evidence about this was given by two witnesses: a geologist, Professor Mavrogenes, and a conservator, Ms McHugh, neither of whom were required for cross-examination.

29    The remaining three topics are controversial and concern matters of archaeology and cultural and art history. The evidence about them was given by four witnesses. The Commonwealth called Mr Julio Condori Amaru (who I shall refer to by his preferred appellation, Mr Condori) and Drs Vranich and Yates. The Applicant called Dr Young-Sánchez. It is convenient to refer to each of these witnesses as an archaeologist although, as will be seen, that does not quite capture their areas of expertise in the same way that the word ‘lawyer’ does not quite capture the range of professions which it encompasses. Each witness provided one or more written reports. Mr Condori gave his evidence virtually from Bolivia with the assistance of a Spanish interpreter on the first day of the trial and was cross-examined. Dr Vranich, Dr Yates and Dr Young-Sánchez gave their evidence during a concurrent session which extended over two non-sequential days and during which each was cross-examined closely.

30    Turning to the disputed topics, the third is whether the Artefact was made by the Tiwanaku. Each of the four witnesses gave evidence about this and each was examined extensively. The fourth topic, which assumes that the Tiwanaku made the Artefact, concerns whether it was made by them at Tiwanaku. The fifth topic, which assumes that the Artefact was made by the Tiwanaku at Tiwanaku concerns the circumstances and timing of its removal from the territorial confines of modern day Bolivia.

31    The determination of whether the Commonwealth has proved its case involves a consideration of a range of smaller topics relating to each of these issues. For example, whilst the parties agree that the Artefact has finely engraved animal figures on its sides they disagree as to whether these are felines, deer or birds and whether their arrangement is typical of Tiwanaku art or not. In relation to some matters there was a determined effort by both parties to discredit the testimony adduced by the other. I will deal with these challenges as they become pertinent.

3. THE KNOWN HISTORY OF THE ARTEFACT

32    The case was conducted on the probable basis that the Artefact derived from the private collection of a Mr Rafael Osona and had been acquired by him in Buenos Aires sometime between 1950 and 1960. The basis for this was an ‘Evidentiary Statement’ signed by Mr Raul Goler, a resident of Taos in New Mexico on 12 August 2010. The statement says that in 1970 Mr Osona, by that time at least also a resident of New Mexico, gave Mr Goler his private collection of ‘primitive’ art objects. A list of the objects given to Mr Goler by Mr Osona is attached to the statement.

33    The word ‘primitive’ sounds somewhat pejorative to the 21st century ear. Pre-Columbian cultures built large stone pyramids, smelted gold and killed each other in a variety of imaginative ways. Whether these activities are the necessary indicia for the presence of a civilisation is perhaps a bigger question but we do not call the ancient Egyptians, who made very similar lifestyle choices, primitive and it is clear that modern archaeologists altogether eschew the expression. Where possible, I too will avoid using the word ‘primitive’ and instead use the word ‘ancient’, although at some points the use of the word will be unavoidable.

34    Returning to Mr Goler’s list, there were a large number of items on it amongst which was item 7: ‘5 (five) stone cups with feline figures and engravings’. Mr Goler said that Mr Osona had assembled his collection from different private collectors in Buenos Aires and mainly from the Antigua Casa Pardo. The evidence does not disclose the nature of the Antigua Casa Pardo. Mr Osona had told Mr Goler that he should store the objects until further notice and eventually sell them since Mr Osona was no longer interested in them.

35    Mr Goler says that he sold a ‘large portion’ of the objects in the collection to Mr Hugo A Arias, a resident of Miami, and that this occurred sometime between 1965 and 1970. An affidavit sworn in 2009 by an Edma Nelly Esper reveals that both she and Mr Arias lived in Miami between 1971 and 1973 and that they were married at some point (although by the time of her affidavit it appears that Mr Arias had passed away and she lived in Buenos Aires). Although it is not entirely clear, the affidavit is consistent with Mr Arias having died in 1973 and Mr Arias’ collection having devolved upon her. She said that the collection included five stone cups between 10 and 30 cm in height with engraved decorations from Bolivia. She also said that she was keeping the entire collection in Denver.

36    The Artefact next appears to have surfaced at the Artemis Gallery and to have done so by no later than 18 October 2017. On that date, Stoetzer, Inc Fine Art Services provided the Artemis Gallery with a report which was signed by Mr Nicholas Stoetzer and Mr Robert Stoetzer. It was their opinion that the Artefact was consistent with a period of manufacture of 400-900 AD and was a fine example of the craftsmanship and artistry of the Tiwanaku.

37    The Artefact was then put up for sale by auction on a website, www.liveauctioneers.com, as lot 144 and entitled ‘Important Tihuanaco Stone Kero w/ Stoetzer Report’. The auction closed at midnight on 5 June 2020. The successful bidder was the Applicant and an invoice was issued by the Artemis Gallery dated 4 June 2020 in the amount of USD$17,340.00 which included a buyer’s premium of 24.5%. I am unable to account for why the invoice is dated the day before the sale. The Artemis Gallery itself appears to be located in Louisville, Colorado. The gallery provided a certificate of authenticity which described its provenance as being ‘private Harrisburg, Pennsylvania, USA collection acquired before 1995; acquired from private Argentina collection from the 1950s’. The certificate carried a guarantee by the gallery’s founder and executive director, a Mr Dodge, that ‘The above item is guaranteed to be of the time period and condition as described, has been exported legally and is legal to buy and sell under all international laws relating to cultural patrimony’.

38    The Artefact was then shipped by FedEx to Melbourne on or about 24 June 2020 in the manner already described and seized. This, then, is all that is directly known about the modern history of the Artefact.

39    There are, I think, some significant problems with this account. For example, there is nothing which directly links the Artefact to being one of the objects in Mr Osona’s collection. Although I would infer that the five stone vessels held by Ms Esper in Denver in 2009 were the same vessels mentioned by Mr Goler as being in Mr Osona’s collection, there is nothing which shows that the Artefact was one of those vessels because there are no photographs of any items in the collection. The best that can be said is that the Artefact matches the description on Mr Goler’s list of being a stone cup with feline figures and engravings.

40    Making the assumption that the Artefact is one of the vessels on Mr Goler’s list, there is also nothing which explains how it made its way from Ms Esper’s collection in Denver (where it certainly was on 20 March 2009 when she swore her affidavit) to the unidentified private collection in Harrisburg, Pennsylvania. Further, whilst the Artemis Gallery certificate states that the private collection in Harrisburg, Pennsylvania had acquired the Artefact before 1995, it is evident from Ms Esper’s affidavit that the collection now said to have included the Artefact had been owned by her or Mr Arias between 1973 and 2009 and before her by Mr Goler and Mr Osona. There is no space in that chronology for the private collection in Harrisburg, Pennsylvania to have acquired the Artefact prior to 1995. Of course, it might be that Ms Esper’s collection is the private collection in Harrisburg, Pennsylvania. But Denver is not Pennsylvania and if Ms Esper or her estate were the holders of the private collection in Harrisburg then it is odd that no one appears to have thought it worthwhile to say so. It might be possible that Ms Esper disposed of the Artefact (or perhaps died) after 2009 and it was afterwards acquired by the interests in Harrisburg, whoever they are, but this is inconsistent with the assertion that those interests acquired the Artefact before 1995.

41    Were it necessary to decide therefore whether the Artefact was one of the stone vessels that had been acquired by Mr Osona in the 1950s in Argentina, I would not be satisfied that it was. However, this was not an issue between the parties (although Dr Yates was also understandably underwhelmed by the provenance documentation). The parties conducted the case on the basis that there was no evidence that the Artefact had been in circulation prior to the 1950s which is certainly true for there is no other evidence about its origins except for the history relating to Mr Osona.

42    Against that backdrop there was no reason for either party to contend that the Artefact in fact originated from somewhere else at some later time. As such, now to make a finding that the Artefact is not the object acquired by Mr Osona would give rise to two related problems. First, neither party has been heard on the proposition which would therefore be procedurally unfair. Secondly, not having heard from either party it is possible that other evidence might have been available which would have explained how the Artefact made its way from Denver to Harrisburg. In that circumstance, it is especially necessary to avoid reasoning that the evidence which has been adduced is the complete universe of evidence particularly where that evidence has not been assembled with a view to dealing with this issue. For example, if this had been known to be an issue the Applicant might well have called as a witness Mr Dodge to explain who the owners of the private collection in Harrisburg were.

43    In that situation, I conclude that the Artefact first surfaced in the 1950s in Buenos Aires in Mr Osona’s collection. The nature and significance of that conclusion may be weighed against the earlier observations I have made about the nature of fact finding in a civil trial.

4. THE SCIENTIFIC ANALYSIS OF THE ARTEFACT

44    Two witnesses gave the principal evidence about what could be gleaned from examining the Artefact. The first was Professor John Mavrogenes. He is a professor at the Research School of Earth Sciences at the Australian National University and produced a report dated 20 October 2021. In that report he said that he had inspected the Artefact and was certain that it was made from black basalt. Professor Mavrogenes has been a geologist for 35 years and has a PhD in geochemistry. I find that the Artefact is made from black basalt.

45    He also said that if it were possible to take a sample from the Artefact one might be able to determine the origin of the black basalt from which it had been carved. However, he had not been permitted to take a sample from the Artefact. I accept this evidence. During the course of the trial I suggested to the parties that it might be useful to take a sample from the Artefact and to test it in the manner suggested by Professor Mavrogenes so that the source of the basalt could be definitively identified. As will be seen, there is evidence that the Tiwanaku extracted basalt from ancient quarries near Tiwanaku and here the thinking was that if the chemical composition of the basalt from which the Artefact had been carved matched the chemical signature of the basalt in these quarries then this would assist in proving it had been made at Tiwanaku. By the conclusion of the trial, however, the Artefact had not been tested in this fashion.

46    Professor Mavrogenes inspected the Artefact a second time on 25 January 2022, which included a microscopic examination, as a result of which he produced two further short reports dated 2 February 2022 and 4 February 2022. In the first report, he expressed the opinion that the Artefact was made from a single piece of black basalt but had been broken at one point and repaired. The breakage and repair were on its main body on the side opposite to the animal head. I accept this evidence.

47    In the second report he explained that he was unable to determine the age of the Artefact without more involved analysis. However, he said that fresh basalt is glassy and does not have a patina. The Artefact has a patina which Professor Mavrogenes thought would have taken hundreds of years to develop. In relation to the portion which had been repaired he noted that the patina was less developed which led him to conclude that the Artefact was broken a long time after it had been initially made. He estimated the time between the initial manufacture of the Artefact and its breakage to be between tens of years to hundreds of years.

48    The second witness was Ms Sarah McHugh. She is the Senior Object Conservator at the National Gallery of Australia and holds a Master of Applied Science (Materials Conservation) from the University of Canberra. She has expertise in materials science, the chemistry of materials including their analysis, the conservation of works of art (and other objects) and the methods and techniques which exist for their restoration and preservation. She has worked as an object conservator since 2003. Ms McHugh examined the Artefact on 28 January 2022 at the National Gallery to which the object was brought for that purpose. The examination was conducted under ambient light, with magnification and under ultraviolet light. She also took x-rays of the Artefact.

49    From her examination Ms McHugh concluded that the Artefact been made without the use of modern methods of manufacture and that its surface was consistent with it being a pre-Columbian stone artefact. It was her view that the chipped uneven edges of the incising on the sides of the vessel and the absence of any striations from abrading within the incised grooves suggested that the incising was achieved by the percussive action of hitting a sharpened tool into the stone to chip it, rather than a modern engraving implement which abrades the lines away. She thought that the surface of the Artefact was consistent with it having been produced using non-mechanical hand tools. For completeness, the incising on the sides of the vessel to which Ms McHugh referred related to the figures and other motifs which appear around the Artefact’s body and about which there is a lively debate concerned with iconography. Ms McHugh’s point is that the figures and motifs were made by hitting a sharpened tool into the basalt (‘chipping’) rather than scraping the stone to make the lines with a modern engraving tool.

50    Like Professor Mavrogenes she thought that it had been repaired at some stage, most likely within the last 30 years, and that it had been carved from a single piece of stone. The 30-year estimate derived from her consideration of the nature of the repairs which she felt were modern in nature and not executed with a particularly high level of skill. She observed that evidence of restoration was consistent with an older object. Here the thinking was that it is unlikely that someone would bother seeking to restore to its original state an object which was not old. Ms McHugh was not required for cross-examination. Neither party suggested that Ms McHugh’s evidence raised the possibility that the Artefact had been excavated in the 1990s (and damaged during that process) and it is not open to consider such a hypothesis (although noting that it would fit with the difficulties presently associated with understanding how the Harrisburg interests acquired the Artefact prior to 1995).

51    In addition to these matters, the certificate issued by the Artemis Gallery states that the Artefact is 30.5 cm high and 21.9 cm wide. There is no reason to doubt this aspect of the certificate.

52    As I have said, by the end of the trial neither party had applied for an order that a sample should be taken so that an attempt might be made to match the Artefact to the basalt quarries located near Tiwanaku. The Applicant submitted that the Court should infer that such testing would not have assisted the Commonwealth. I do not accept this submission. Neither party had the ability to test the Artefact without the permission of the other. Prior to the making of a forfeiture order, the Applicant continues to own the Artefact and the Commonwealth, whilst having custody of it, has thereby no right to damage it by taking a sample from it. Correspondingly, the Applicant cannot test the Artefact because it does not have possession of it. The only way through this would be for both parties to co-operate or for one to apply to the Court for an order for testing. Neither of these paths were pursued. I do not think in that circumstance it would be appropriate to draw any inference about the failure of either party to arrange for testing.

53    The Applicant accepted the evidence of Professor Mavrogenes and Ms McHugh ‘so far as it goes’: ACS [20]. On the basis of the provenance evidence and the evidence of Professor Mavrogenes and Ms McHugh, I make these findings:

(a)    the Artefact is made from a single piece of black basalt and is 30.5 cm high and 21.9 cm wide;

(b)    the figures and motifs on the side of the vessel were incised with the percussive action of a sharpened tool rather than by engraving with a modern tool;

(c)    the Artefact was manufactured not less than hundreds of years ago;

(d)    its surface is consistent with it being of pre-Columbian origin;

(e)    it was damaged long after it was manufactured (due to the different levels of patination on the damaged portion) with the damage occurring between tens and hundreds of years after it was manufactured;

(f)    it was repaired at some stage in around the last 30 years in a manner which was not particularly expert; and

(g)    it first surfaced in the 1950s in Buenos Aires.

5. WAS THE ARTEFACT MADE BY THE TIWANAKU?

54    It is necessary to deal with a number of matters:

(a)    the witnesses: Mr Condori, Dr Young-Sánchez, Dr Vranich and Dr Yates;

(b)    the general history of the Tiwanaku;

(c)    whether the Artefact is an example of a ceremonial drinking vessel known as a kero; and

(d)    the iconography and morphology of the Artefact.

(a) The witnesses

Mr Julio Condori Amaru

55    Mr Condori was the Executive General Director of the Centre for Archaeological Anthropological Research and Administration of Tiwanaku from 14 May 2015 to 11 January 2021. He is now a Registration and Assessment Expert of Archaeological Projects and Historical Sites within the Bolivian Ministry of Cultures, Decolonisation and Depatriarchalisation. His work has involved the management of museums and the ruins of Tiwanaku, where he has also carried out research projects.

56    Mr Condori was called by the Commonwealth and provided reports dated 15 September 2021 and 11 January 2022. These reports were prepared with Mr Erick Leonel Ovando Lopez but Mr Lopez did not give evidence and I proceed on the basis that the reports are to stand as the evidence of Mr Condori. In Mr Condori’s opinion the description, shape, style and type of manufacture of the Artefact indicated that it was most probably from the Tiwanaku ruins. He thought that the Artefact had been created between 300 and 800 AD.

57    Mr Condori gave his evidence on the first day of the trial from Bolivia by means of an imperfect video link and with the aid of a Spanish interpreter. He was extensively cross-examined. A number of specific challenges were made to Mr Condori’s evidence which I will deal with as the need arises. However, more generally Mr Lancaster SC for the Applicant submitted that Mr Condori was an employed representative of the Bolivian government and could not be regarded as a truly independent expert. I accept this submission although noting that in the case of culturally important objects the experts in the area are often likely to include employees of the government of the nation in question. To my observation, Mr Condori was an enthusiast for the return of the Artefact to Bolivia. I do not think this impacted on his expertise but I have taken it into account in assessing the use to which his evidence should be put.

Dr Donna Yates

58    Dr Yates is an associate professor of criminal law and criminology at Maastricht University in the Netherlands and prior to this was a senior lecturer in antiquities trafficking and art crime at the University of Glasgow’s Scottish Centre for Crime and Justice Research. She holds a bachelor’s degree in archaeology from the Boston University which focussed on Latin American archaeology; a master’s degree from the University of Cambridge which focussed on the international market for South American archaeological objects in response to changes in law and policy; and a PhD in archaeology also from the University of Cambridge. The subject matter of her thesis was 20th and 21st century Bolivian archaeological law and policy within the local and international context. She has published widely on Bolivian cultural objects and the trafficking of archaeological and historic objects out of Bolivia. In addition she spent two years in 2005 and 2006 working as an archaeologist at the monumental core of Tiwanaku. She has given expert commentary relating to Bolivian cultural objects to the Manhattan District Attorney’s Office, the US State Department and the Bolivian Embassy in London. She also provides primary identifications of seized Bolivian cultural objects for the World Customs Organization.

59    Dr Yates was called by the Commonwealth and provided a report dated 22 October 2021 and a supplementary report dated 9 February 2022. In her opinion, the Artefact had been made at Tiwanaku by the Tiwanaku. She believed that it had been removed from Tiwanaku by looters around 1950. She gave her evidence by means of a virtual platform from the Netherlands during a concurrent session with Dr Vranich (who was in Warsaw) and Dr Young-Sánchez (who was in Auckland) and was examined extensively.

60    A number of specific challenges were made to Dr Yates’s evidence by the Applicant and I will deal with these as I come to each topic. However, a general challenge was made to her expertise with which it is convenient to deal at this point. It was submitted that Dr Yates did not have a significant depth of personal experience in the identification of Tiwanaku artefacts. I do not accept this submission. Whilst it is true that on a number of topics Dr Yates deferred to the views of Dr Vranich I do not think that this signifies that she lacked significant expertise herself. Thus for example, although she thought that Dr Vranich could say more on the general topic of the Tiwanaku culture she was happy to do so herself and indeed did so: T70.1-15. The same may be said in relation to her deferral to Dr Vranich on the topic of the relationship between the Tiwanaku and the Wari: T76.8-15. I do accept that she did defer to the expertise of Dr Vranich on the topic of the source of basalt for Tiwanaku objects: T81.1-9. I do not accept the submission that T99.22-23 shows that Dr Yates deferred to Dr Vranich on the topic of the design features of the Artefact – this appears to be evidence about an entirely different topic. Likewise, it does not seem to me that Dr Yates deferred to Dr Vranich on the topic of 19th century expeditions at T10.32-33 although I do accept that Dr Vranich was more expert on that topic than Dr Yates. The Applicant submitted that in relation to significant issues, Dr Yates in her report ‘simply adopted other analyses’ provided to her by the Commonwealth. However, this submission does not appear fairly to characterise Dr Yates’s consideration of those other analyses. I am satisfied that the sections of Dr Yates’s report to which I was directed by this submission (Court Book (‘CB’) 78 and 81) show that she has independently evaluated the claims in those other analyses before discussing their significance.

61    The Applicant also drew my attention to a portion of Dr Yates’s examination during the concurrent session at T114.1-4. The full passage is at T113.39-114.8:

MR LANCASTER: Dr Yates, can I ask you a similar question to one of my earlier questions to Dr Vranich. Do you accept that it’s a fair summary of your methodology that you came to an early first impression that this was a Tiwanaku object and after that point you were looking for conclusive proof that it was not a Tiwanaku object to dissuade you from that initial view?

DR YATES: I think that that’s a mischaracterisation in that, yes, being shown the piece, my initial reaction was that it was a Tiwanaku object. But my research methodology focused mostly on comparability. Not to disprove the Tiwanaku identification, but also to prove it. So this involved looking at comparable objects from archaeological excavations in museums. It involved reading academic papers and books. It involved finally getting around to reading a whole book on experimental archaeology related to the creation of Tiwanaku stonework. So I – I think that I approach this in a more holistic way than you’re describing. Yes, there was an element for looking for derivations from possibility, but there is also an element of looking at, you know, comparing it to pieces that we know about to – just to see – see how it compares, if that makes sense.

62    The submission was that this showed that Dr Yates’s expertise had been acquired quite recently rather than being the result of deep research and long-standing knowledge. I think there is little in this criticism. I do not see how a close examination of the iconography and provenance of the Artefact could not involve consulting other works and it would be implausible to think that any of the experts carried around in their heads the details both as to form and source of every Tiwanaku object. I do not think that this answer shows that Dr Yates was a Tiwanaku ingénue who had read up on the topic in order to give her evidence.

63    A part of Dr Yates’s evidence touched on the topic of the location of the nostrils on the feline of the Artefact which I deal with in detail later in these reasons. However, her cross-examination showed that in between the two days over which the concurrent session was conducted and after the completion of the first day during which the topic of the nostrils had been introduced, Dr Yates had resorted to Twitter, as it was then known. She had done so to see if she could find a feline head with its nostrils set back from its teeth (the curious relevance of the nature of this inquiry will later emerge). The Applicant submitted that she had thereby attempted to ‘crowd-source’ this information and, as I apprehended the submission, this too showed that she lacked expertise.

64    I do not accept this submission. Dr Yates was simply trying to track down an object with the requisite snout. It is true that Dr Young-Sánchez had indicated in her report that the location of the feline’s nostrils was anomalous, an observation which supported her predominant thesis that the Artefact was a modern fake or pastiche. No doubt, it would have been preferable if Dr Yates had endeavoured to find a feline whose nostrils were set back from its mouth when she prepared her report in reply. But I do not think it redounds on her credit either that she did not do so or when subsequently it became clear that she was being cross-examined closely about it, that she sought to redress this deficiency. That she chose to do so on Twitter is no doubt modern but I do not think that it shows that she is not an expert. An insinuation was made during her cross-examination that she had in fact been attempting to find an object with a particular provenance feature for the second day of the concurrent session. I record for completeness that I accept Dr Yates’s evidence that the reason she went looking for the object was related to the nature of its snout.

65    I therefore reject the Applicant’s challenges to Dr Yates’s expertise. There was also a general submission that she was extremely reluctant to concede obvious propositions that went against the Commonwealth’s case. I will deal with the individual criticisms on which the submission rests as they arise, however, as a general proposition I do accept that Dr Yates was, like Mr Condori, something of an enthusiast for the return of items of Bolivian cultural heritage. I do not agree with the Applicant that this means that her evidence is of no value but I do accept that in assessing her evidence one must filter out the reasoning on which her evidence rests (which is in my view valuable) from her background enthusiasm.

Dr Alexei Vranich

66    Dr Vranich is from the Archaeological Institute of Archaeology at the University of Warsaw. He received his PhD in 1999 for his dissertation entitled ‘Interpreting the Meaning of Ritual Spaces: The Temple Complex of Pumapunku, Tiwanaku, Bolivia’ and has held academic positions at several universities. The Pumapunku is the Gateway of the Puma at Tiwanaku and some of the evidence in the case turns on it. Dr Vranich has published widely on the Tiwanaku and has extensive archaeological experience in the field. This field experience included 10 years as the co-director and principal investigator of an archaeological project at Tiwanaku between 1996 and 2006. Having surveyed his curriculum vitae it is evident that he has devoted a significant portion of his professional life to Tiwanaku and the Tiwanaku culture.

67    Dr Vranich provided a report dated 17 May 2021 and a supplementary report dated 19 February 2022. His evidence dealt with three questions: (i) when was the Artefact made; (ii) where was the Artefact made; and (iii) in what circumstances was it removed from Bolivia? As to the question of when the Artefact was made, it was Dr Vranich’s opinion that the design of the Artefact indicated that it had been made during the pre-Tiwanaku Period or the Tiwanaku Period which collectively went from 100 BC to 950 AD. He thought it likely that the date of manufacture was towards the end of these two periods and narrowed the range to 500-1000 AD which he identified as the Middle Horizon Period.

68    As to the question of where the Artefact was made, it was Dr Vranich’s opinion that the Artefact came from the ruins at Tiwanaku. He accepted that the Tiwanaku culture was present in places other than Tiwanaku and that there were other sites in Chile and Peru. However, he did not think that the Artefact could have come from any site apart from Tiwanaku. The reason for this conclusion was that the Artefact was an advanced piece of stonework and advanced stonework in Tiwanaku culture had been found only at Tiwanaku itself. He accepted that it was true that a carved stone object had been found at the site of Lukurmata, one valley to the north of Tiwanaku (in Bolivia), but even that had been made at Tiwanaku and dragged over the low hills.

69     As to the question of how the Artefact came to leave Bolivia, Dr Vranich favoured the view that the Artefact had been removed from Tiwanaku during excavations conducted by the Argentinian archaeologist Dr Eduardo Casanova in 1934 and transported by train to Buenos Aires.

70    Dr Vranich gave his evidence by means of a virtual platform from Warsaw during the concurrent session with Dr Yates and Dr Young-Sánchez and, like Dr Yates, was examined extensively. A number of challenges were made to his evidence which I will deal with as the need arises. Like Mr Condori and Dr Yates, I do think that Dr Vranich was also an enthusiast for the return of the Artefact to Bolivia. However, as in their cases, I do not think that this requires the rejection of his evidence, just some care in its use.

Dr Margaret Young-Sánchez

71    Dr Young-Sánchez is presently the head of exhibitions and collection services at the Auckland Art Gallery Toi o Tāmaki. She holds both a Bachelor and a Master of Arts in anthropology from Yale University and a PhD from Columbia University. Her PhD dissertation was on the art of Peru’s Central Coast from 800-1100 AD. She has extensive experience in pre-Columbian cultures generally and the Tiwanaku culture in particular having worked in her field for 40 years. For 30 years she served as a curator of pre-Columbian art at the Cleveland Museum and later the Denver Art Museum. In 2004, following years of research at Tiwanaku and at museums holding Tiwanaku artefacts, she organised an exhibition at Denver Art Museum entitled ‘Tiwanaku: Ancestors of the Inca’ which was (and remains) the most significant museum presentation of Tiwanaku art ever staged.

72    Dr Young-Sánchez was called by the Applicant and provided a report dated 21 December 2021. Her initial opinion was that the Artefact was a fake or pastiche but she had largely revised this opinion by the time of the hearing. In her view, the iconography of the Artefact had several elements which could not be found in other Tiwanaku objects. It was her view that the Artefact had been made by someone familiar with the Tiwanaku culture but inexpert in its application.

73    Dr Young-Sánchez gave her evidence by means of a virtual platform from Auckland during the concurrent session with Dr Yates and Dr Vranich. She was extensively examined. Both Dr Vranich and Dr Yates clearly respected the opinion of Dr Young-Sánchez although they differed from it. I accept the Applicant’s submission that this shows that they accepted her views, especially on the question of provenance, as legitimate, defensible and respectable. I think it may fairly be said that all three witnesses respected each other’s views. I do not think, however, this advances debate in either direction.

(b) The general history of the Tiwanaku

74    The experts were largely in agreement about the overarching facts of the Tiwanaku culture. Dr Yates described the Tiwanaku as an ancient culture that rose to prominence in the Andean Middle Horizon in the period from 600 to 1000 AD and which was based on the Bolivian high plain, or altiplano, in the Lake Titicaca basin. It appears to have been preceded by the Pucara civilisation. Dr Young-Sánchez said that Lake Titicaca and Tiwanaku had later been used by the Inca as sacred places of origin and pilgrimage until the Spanish conquest in the 16th century. The Inca capital, Cuzco, lies hundreds of miles north of Tiwanaku in Peru.

75    Dr Yates explained that the Tiwanaku culture was well-known for its masterful stonework which was particularly exemplified by the city of Tiwanaku. The city comprises monumental structures including temples and pyramids as well as large and small sculptural works. Dr Young-Sánchez thought that interest had long been focussed on Tiwanaku’s finely cut and fitted stone masonry, monumental stone gateways, lintels and statues, some of which were decorated with animals, supernatural beings and geometric motifs.

76    All parties accepted that Tiwanaku was the primary city of the Tiwanaku culture. Dr Young-Sánchez said that only a small part of Tiwanaku had been documented in detail. Fundamental questions still remained about important aspects of the city including its construction history and the functions of its major architectural structures.

77    Dr Vranich observed that the Tiwanaku civilisation extended across the modern-day Bolivian border into what are now Peru and Chile, a view with which Dr Yates, Dr Young-Sánchez and Mr Condori agreed. Dr Young-Sánchez added that at one time it was thought that Tiwanaku was the capital of a great empire which had controlled territories in Bolivia, Chile, Peru and Argentina. However, the present view was that its sphere of direct cultural influence was more limited, extending only into southern Peru and northern Chile. Dr Yates felt that the primary archaeological sites were nevertheless in the Bolivian heartland. Mr Condori thought that the Tiwanaku culture was located on the south-eastern side of Lake Titicaca and radiated from Tiwanaku towards inter-Andean valleys, reaching the coastline, although this latter claim was refuted by Dr Vranich, who said that no Tiwanaku sites have been found along the coast: T71.20-23.

78    According to Dr Yates, the nature of the relationship between the sites in Chile and Peru and the Bolivian heartland has been the subject of much discussion. The discussion had ranged from those sites being colonies of the Bolivian Tiwanaku people, possibly sent there for the purposes of trade, through to them being politically separate from Tiwanaku. In her supplementary report Dr Yates indicated that most scholars now assumed that the true position lay somewhere between these two poles. Dr Young-Sánchez thought that these settlements were linked to Tiwanaku by trade and kinship ties, with llama caravans transporting goods between the regions.

79    However, there was no real dispute between the witnesses that the sites in Peru and Chile were Tiwanaku. Dr Yates and Dr Vranich each volunteered the connection and Dr Young-Sánchez gave slightly more detailed evidence about it, noting the tomb excavations which had been carried out in the Moquegua Valley in southern Peru and the Atacama Desert in Chile. I will refer to these sites as being Tiwanaku sites for the sake of convenience but in doing so I do not mean to step into the debate as to whether the people within the Tiwanaku sphere of direct cultural influence were the same people as the Tiwanaku at Tiwanaku and, in particular, the question of whether they were ethnically the same. For the purposes of the Applicant’s case it is sufficient that they lie within the sphere of direct cultural influence.

80    It is open to infer, and I do, that the Tiwanaku culture rose to prominence roughly between 600 and 1000 AD and was centred around the ancient city of Tiwanaku on the south-eastern side of Lake Titicaca. The culture extended to sites in the Moquegua Valley and the Atacama Desert.

81    The difference between the witnesses about the Tiwanaku settlements in Chile and Peru lay in their differing views about the extent of the stonework carried out in those places. I will return to this topic when I come to deal with the important issue of basalt below.

82    A general point Dr Young-Sánchez made about the Tiwanaku culture was that the number of objects which were in museums and collections was small when compared to other Andean civilisations such as the Inca, Moche or Wari. She thought that this related not only to the export restrictions imposed by the Bolivian government in the 20th century but also the Tiwanaku’s limited manufacture of artworks which were in media durable enough to survive centuries of burial in the Andean altiplano’s harsh climate.

(c) Could the Artefact be a kero?

83    Dr Yates explained that a kero was a particular vessel shape common to the Andes typically consisting of a cylindrical cup without a handle and with a flaring upper edge. Here are some pictures of Tiwanaku ritual keros:

84    Dr Young-Sánchez added keros were used at Tiwanaku and elsewhere in the Andes for drinking corn beer which was an essential element in feasting and religious ritual. On the other hand, Mr Condori was of the view that kero ceremonial vessels were peculiar to and characteristic of the Tiwanaku culture. I do not accept Mr Condori’s evidence to the extent that it suggests that there are no keros in other ancient Andean civilisations. It is contradicted by the evidence of Dr Yates and Dr Young-Sánchez.

85    Dr Yates explained that whilst ceramic keros are common at Bolivian Tiwanaku sites, the Artefact was made from stone which made it extremely rare in the canon of known Tiwanaku sculptural works. In her report, Dr Young-Sánchez thought that basalt had been used at Tiwanaku for making vessels such as keros. This evidence may be reconciled by concluding that basalt keros at Tiwanaku were very rare although not unknown. On the other hand, it was also Dr Young-Sánchez’s evidence that basalt keros found at Tiwanaku were typically much smaller and had much thinner walls than the Artefact. She also made the point, which has the advantage of common sense, that the Artefact’s thick walls, large size and heavy weight made it completely impractical for use as a drinking vessel. It was her view that there were no comparable keros in Tiwanaku culture. I accept this evidence.

86    I therefore find that: (a) the use of basalt to make keros at Tiwanaku was relatively unusual but the extant basalt keros are smaller, have thinner walls and weigh less than the Artefact; (b) the Artefact is not practical for use as a kero in the sense that it is hard to imagine a person comfortably quaffing corn beer from it; and (c) its weight and size make it an especially rare find. The Applicant sought to muddy these waters at ACS [88(a)] by pointing out, correctly, that other Andean cultures also worked in basalt, instancing a winged figure currently held in the National Anthropological Museum of Peru at Lima. As I later explain, this object appears to have been made by the Pucara civilisation which preceded the Tiwanaku civilisation. However, in the absence of a suggestion from the Applicant that the Artefact was made by the Pucara civilisation (which there was not), I do not see that this has any relevance. More generally, whilst I am content to assume that there were other Andean civilisations which worked in basalt, in the absence of any evidence which suggests that the Artefact was made by such a civilisation, this likewise goes nowhere. For completeness, I note that the Applicant’s submission at ACS [88(a)] also references a ‘winged puma figure’ located at page 5 of Exhibit 3. This is the object that was purchased by the Peruvian doctor at Puno, now located at the Ethnological Museum of Berlin, and is believed to be a Tiwanaku object. I have proceeded here on the basis that it is the Pucara object being referred to as this submission would not make sense otherwise.

87    Returning to the task at hand, the conclusion that the Artefact is not actually likely to have been used as a kero does not negate the possibility that it is a sculptural depiction of a kero rather than an actual kero. It will be recalled Dr Young-Sánchez herself gave evidence that the kero was an essential element in feasting and religious ritual and Dr Yates expressed the opinion that the kero was significant in the Tiwanaku culture. It would therefore not be entirely surprising to find sculptural depictions which include keros. While this deductive observation would of course be purely speculative without more, it is borne out by the evidence of Dr Yates who provided an example of a large stone figural sculpture at Tiwanaku holding a kero. Dr Yates also said there were other examples at Tiwanaku and nearby Bolivian Tiwanaku sites of stone figures holding keros. This was consistent with the evidence of Mr Condori who said that keros could be found in the sculptural iconography of the Tiwanaku culture. In her report, I did not apprehend Dr Young-Sánchez to take issue with this proposition which I therefore accept.

88    Thus whilst Dr Yates accepted that generally keros were ceramic vessels she thought the Artefact appeared to be a stone rendering of a ceramic kero. Dr Vranich went somewhat further. It was his view that the Artefact was ritual in nature. First, he thought that the intact nature of the Artefact indicated that it had been buried (and therefore protected from the depredations of open exposure). Whereas Professor Mavrogenes had deduced from the Artefact’s patina that it was at least hundreds of years old, Dr Vranich saw evidence that the Artefact had been very often touched. In particular he thought that the surface of the protruding feline head had a gloss, an observation from which he was inclined to infer that it had been frequently touched and had therefore been an object of veneration. The burial of a venerated object suggested to Dr Vranich that it was ritually significant.

89    I would accept Dr Vranich’s evidence that the Artefact had been buried because it is difficult to see how an object at least hundreds of years old could be in such an intact condition otherwise. However, I do not think I could find on the state of the evidence that the Artefact had been venerated because of the patination pattern on the feline head which, at this stage, cannot be said to be more than admittedly informed speculation. As I have explained above, I do not mean by this to suggest that the Artefact was not venerated as Dr Vranich suggests, only that in the context of a civil trial I am not affirmatively persuaded that this is so.

90    However, I am satisfied that the Artefact was ritual in nature. Dr Vranich’s view that the Artefact was ritual is consistent with the following facts: (a) its fashioning from basalt was labour intensive and suggests that it was a prestigious object; (b) it is a depiction of a kero; (c) keros were used in ritual ceremonies involving the drinking of corn beer; and (d) the Artefact is not practically useful for drinking corn beer. This view is also supported by the evidence of Mr Condori who likewise thought that the Artefact was used for ceremonial or ritual purposes. The Applicant submitted that Mr Condori provided no evidentiary basis for his conclusion that the Artefact was ritual in nature (ACS [52(e)(i)]), which is correct. On the other hand, I do not accept the criticism made by the Applicant at ACS [52(e)(ii)] that there was a tension between Mr Condori’s evidence that ceremonial or ritual objects were not found outside Tiwanaku and the evidence he gave at T43.8-19 that ceremonial objects assumed to have been made at Tiwanaku were found in Chile and Peru. At T95.44-45 Dr Young-Sánchez thought that feline figures tended to get used in high-prestige objects which were sometimes religious. Further, when giving evidence about the rate of change of stylistic elements part of her reason for saying that variations would be slow was that the Artefact had a religious purpose (T107.12), a view with which Dr Yates agreed (‘Absolutely, I completely agree with that’): T107.17.

91    I am satisfied that the Artefact served a ritual purpose of some kind.

92    The evidence can reasonably sustain the drawing of an inference that the Tiwanaku culture included not only ceramic and occasionally smaller basalt keros which were used for ritual or feasting purposes but also sculptural depictions of keros in stone. I am affirmatively persuaded that this is the case and therefore draw this inference.

93    As such, I do not accept Dr Young-Sánchez’s point that the basalt Artefact’s cumbersome size and weight make it unprecedented in the Tiwanaku culture. No doubt this is true if attention is confined to actual drinking vessels but I do not think that Dr Young-Sánchez’s evidence dealt with the implications of the Artefact perhaps being a sculptural depiction of a kero rather than a functional kero. As Dr Vranich observed on this topic, many people wear crucifixes whose design features differ markedly from the real thing.

94    Of course, this does not mean that the Artefact is, in fact, a basalt depiction of a kero. Rather the point is that the fact that the Artefact is made from basalt and is too large and heavy for practical use as a kero does not negate the possibility that it is a sculptural depiction of a kero.

(d) The iconography and morphology of the Artefact

95    At this point it is helpful to provide an additional angle from which to view the Artefact:

96    Most of the evidence about iconography and morphology was given by Dr Yates, Dr Young-Sánchez and Mr Condori although Dr Vranich was also cross-examined about it. Dr Yates thought that the Artefact was decorated with incised geometric and faunal designs and was fronted with the projected head of a feline on a square base. I did not apprehend this evidence to be disputed by anyone. Rather, the debate centred around what the designs depicted actually were and the extent to which the designs and the projected feline head on a square base could be said to be within the canon of the Tiwanaku culture.

97    Thus what is required is a comparison between the Artefact on the one hand and, on the other, what is known from the archaeological record of the Tiwanaku about incised designs and feline heads projecting from square bases.

98    Dr Young-Sánchez opened the batting on this topic by pointing out the paucity of the archaeological record and the fact that the Tiwanaku culture had been understudied in relation to other pre-Columbian cultures. She observed that the study of the specialised art history of the Tiwanaku, including their stylistic conventions, had been hampered by the very limited number of trained researchers working in the field as well as the comparatively small body of well-preserved artworks. Whilst it was true that stone, ceramics, metal and bone were preserved in the archaeological record, other less durable materials had not endured at Tiwanaku and the vast majority of excavated artefacts were fragmentary in nature. The preservation of less durable artworks was, on the other hand, greater in extent in the more arid regions of Peru and Chile. It is also useful to recall her evidence that the documentation of the Tiwanaku site is not yet anywhere near complete. She also thought that there was only a tiny body of published art historical literature.

99    To my mind Dr Young-Sánchez’s observation does not perhaps go very far on this particular topic. As will be seen, the evidence of Dr Yates attempted to match the iconography of the Artefact to what is presently known about the iconography and morphology of the Tiwanaku culture. The fact that the available range of Tiwanaku objects is limited to what is available in stone, ceramics, metal or bone does not really detract from her point that the incisions on the Artefact and its protruding feline head correspond with what is apparent from the archaeological record which already exists.

100    The fact that less durable objects have not endured into modern times or that many of the durable items are fragmentary in nature does not detract from the point Dr Yates is making. In particular, in the counter-factual world in which what remains at Tiwanaku now includes in an intact state all the objects which are fragmentary and all of the objects made from less durable materials, this would not logically be capable of detracting from Dr Yates’s matching of the iconography of the Artefact to those objects which have in fact endured into modern times. For example, if, as Dr Yates thought, the use of a deer motif was distinctive of the Tiwanaku culture because a deer motif could be discerned in the existing archaeological record, this conclusion could not be dented merely because many objects may have been lost which might have proved the popularity amongst the Tiwanaku of, say, an eagle motif. Put another way, future finds will not be capable of extinguishing the fact that what has already been uncovered shows that the Tiwanaku used deer motifs. I do not think therefore that the limited nature of the archaeological record can rationally erode Dr Yates’s opinions on the Artefact’s iconography.

101    Further, whilst I accept that less durable objects have been retrieved from the sites in Chile and Peru, Dr Young-Sánchez did not point to any of these objects in her explanation of why the Artefact was not an example of the Tiwanaku culture. One reason for this may be the logic of the previous paragraph. At best, they might have shown other features not present on the Artefact but this would not have advanced the debate for the reasons I have given.

102    Having cleared that point away, the parties were in dispute about the correct interpretation of six stylistic elements of the Artefact. These were:

    stylised figures which appear on the body of the vessel;

    a pattern on the lower portion of the vessel referred to as a meander or Greek key;

    a band around the top of the vessel which contains small rectangles;

    the feline head which protrudes from the body of the vessel and is mounted on a square base (and the related question of whether the Artefact depicts a kero or an incensario);

    the crossed canines of the feline and the number of its front teeth; and

    the position of the nostrils on the protruding feline head.

103    The Applicant submitted that Dr Yates’s evidence about these matters was unsatisfactory. This was because, despite having dealt with the topic of feline iconography at §1.3.3 of her report and with incised motifs on Tiwanaku stonework at §1.3.4, Dr Yates had failed to bring forth in her evidence any examples of a Tiwanaku object which had three particular features. These were: (i) the rectangles in a non-segmented band; (ii) what was said to be stylised bird motifs; and (iii) the Greek key motif: ACS [56(b)].

104    What precisely these features are may be postponed until I deal with each of those matters in detail. The present point is that it was put to Dr Yates that despite the Artefact having these three features she had not included in her report (and did not provide during the concurrent session) any Tiwanaku object which had any of these three features. The relevant part of the transcript is T115.7-42:

MR LANCASTER: You got that one? So, I think the top right-hand image is our object, a close-up image of the side of the vessel. And what I want to suggest to you – or what I want to ask you is, you said that these – you considered ceramics and other objects or things with Tiwanaku designs on them. There are three aspects of this closeup photograph that I want to suggest to you you have not brought forward any photographic evidence of any Tiwanaku object with a similar design. The first of it is at the top of the image, rectangles in a non-segmented band. The second of them is, in the middle of the picture, the stylised bird head motifs. And the third is, at the bottom of the image, the geometric rectangular form of the recurring key motif. So, can you answer that all at once? I know it has three parts, but I suggest to you ..... those three design features are unprecedented according to your own evidence.

DR YATES: I should say that this isn’t my evidence.

MR LANCASTER: No.

DR YATES: But also, I have not been asked by anyone, to mirror what Dr Vranich has been saying, to comment extensively on very particularly this one motif, and thus have not been given the opportunity to look at it. But you’re also talking about a very limited number of objects. And if – if – the scale of the amount of review that we would need to do to definitively say that no Tiwanaku object has this motif is so great it’s almost indescribable. I’ve excavated at Tiwanaku on Dr Vranich’s project, and in a single hour of a single day in the middle of the monumental core, I would have wheelbarrows full of painted Tiwanaku ceramics. Any piece of any one of those may have exactly the stylistic elements that you’re talking about. We’re looking at three things, and there’s a bazillion things to review.

But ultimately, I mean, you’re pointing to the snakes on the Bennett stela. It is very easy to argue, and people do, that this kind of Greek key meander style, it becomes the stylised version of these snakes. It’s the extraction out into something more stylised. And you’ve picked one qiru out of again, literally, I excavated there for two days – so many qirus that we could be looking at. So I would be happy to produce a report of some sort about the – these particular stylistic elements, but I – I don’t think looking at these two limited pictures says anything at all about their range of possibility for Tiwanaku objects.

105    An assessment of the correctness of the Applicant’s submission requires an appreciation of the way in which the evidence in the case was prepared. In her report in chief Dr Yates said that the presence of the feline head was typical of the Tiwanaku as were the incised motifs on the side of the Artefact. In her report in response, Dr Young-Sánchez expressed the principal view that the Artefact was a fake or pastiche. She did however give evidence about the iconography of the Artefact. In particular, she gave evidence that the incised figures were birds and would usually be used in a secondary way as part of another feature rather than, as they are on the Artefact, as primary motifs. She did not in her report, however, say anything about the rectangles in the band or the Greek key feature. Thus when Dr Yates prepared her report in reply she had no reason to consider the rectangles or the Greek key feature which Dr Young-Sánchez had not raised as an issue. Dr Yates in her report in reply accepted that the combination of the iconographic elements was probably unique but did not in terms respond to Dr Young-Sánchez’s point that the use of the bird motifs was uncharacteristic.

106    It was in that procedural context that Dr Yates was then asked the question set out above. The suggestion that ‘those three design features are unprecedented according to your own evidence’ can only have been a reference to Dr Yates’s reply evidence that the combination of the iconography on the Artefact was probably unprecedented. Contrary to the submission made by the Applicant at ACS [56(b)], the answer Dr Yates gave was not inconsistent with the evidence she had given about feline iconography. Indeed, the question she was asked and the answer she gave had nothing to do with the feline head. Of more substance is the Applicant’s suggestion that Dr Yates’s inability to comment on these incised elements of the Artefact sat uneasily with the fact that she had dealt with the topic of incised motifs in her report in chief at §1.3.4. However, once the procedural history is brought to account, Dr Yates had no reason to do so in her report in chief where she simply said that incised motifs were typical of the Tiwanaku. Further, since Dr Young-Sánchez had not said anything in her evidence about the band containing the rectangles or the Greek key feature, no criticism can be levelled at Dr Yates for failing to have identified prior to the time she was asked the question whether there were Tiwanaku objects which displayed those features.

107    In relation to the bird head motifs, this is potentially not so. Dr Young-Sánchez’s evidence, with which Dr Yates had been provided, was that the bird head motif was not used as a primary motif. In that regard, Dr Yates did have the opportunity, if she wished, to locate a Tiwanaku object which did feature a bird head motif as a primary feature. However, this is not the question she was asked. Instead of being asked whether, as the evidence of Dr Young-Sánchez suggested, she was aware of an example where bird head motifs were used as primary features, the question was whether she was aware of the use of stylised bird head motifs; i.e., no reference was made to their use as primary features. As will be seen, Dr Young-Sánchez herself accepted that stylised bird head motifs were used by the Tiwanaku; her point was that they were not used in the way depicted on the Artefact. Thus this aspect of the question misfired.

108    As such, I see nothing in the answer that Dr Yates gave which warrants criticism. In effect, the submission is that she is to be criticised for failing to foresee that she would be cross-examined about two iconographic features of which she had no notice. In relation to the one iconographic matter of which she did have notice, the question incorrectly asserted to her that stylised bird head motifs did not feature in Tiwanaku iconography when the Applicant’s own evidence was to the contrary. I therefore reject this criticism of Dr Yates.

109     Turning then to the particular iconography debates:

(i)    The highly stylised figures

110    Dr Yates thought that Tiwanaku stonework was characterised by fine line incision decorations depicting geometric forms of highly stylised anthropomorphic or animal figures. It will be recalled that it was the rough edges of these fine line incisions which had persuaded Ms McHugh that the Artefact had been manufactured with the percussive action of a sharpened tool of non-modern mechanism. Dr Yates said that the detail of these highly stylised figures appearing on Tiwanaku stonework could generally be difficult to observe in photographs. However, in this case, the photographs permitted Dr Yates to closely inspect the Artefact and discern the details.

111    Dr Yates thought that the highly stylised figures depicted on the body of the vessel were deer, shown in profile. Mr Condori, on the other hand, thought that the figures were the heads of felines which had been elongated towards the protruding feline head. Dr Young-Sánchez disagreed with these opinions, chiding Dr Yates and Mr Condori for their views and strongly insisting instead that the figures were the heads of birds. After Dr Young-Sánchez expressed her admonitory opinion Dr Yates prepared a supplementary report. In this report, she did not enter upon the debate as to whether the figures were the heads of deer or birds. Although she was cross-examined to suggest that the bird head motif was unprecedented in the Tiwanaku archaeological record, I did not apprehend her to concede that the figures were the heads of birds rather than those of deer and certainly this was not put squarely to her. Likewise, Mr Condori was not confronted on his opinion that the figures were elongated feline heads.

112    I have not found that inspection of the various photographs of the Artefact assists in the resolution of this debate. For my part I cannot tell whether what is depicted are the heads of birds, felines or deer but no doubt this is because I do not work in the field of pre-Columbian iconography. I thus reject the Applicant’s submission at ACS [84] that from a lay person’s perspective the Artefact does not look like the various Tiwanaku artefacts which appear in the evidence. I am also not sure I agree with the premise of the submission about what the lay person thinks. For what it is worth, to me the Artefact looks like a kero with a cat sticking out the side of it. My opinion, however, is worth nothing because I am quite confident that this is not an area in which the opinion of lay persons matters.

113    As it happens, however, I also do not think that the question of whether the motifs are birds, felines or deer matters. Whether they are birds, felines or deer, Dr Young-Sánchez accepted at T109.25 that the figural motifs on the Artefact were elements found in Tiwanaku art. If it were germane, I would accept Mr Condori’s evidence that felines were common in Tiwanaku iconography – the chachapumas instanced by Dr Yates and discussed later in these reasons make this point very clearly. I would also accept Dr Yates’s evidence that the deer motif is one of the most important stylistic elements in Tiwanaku iconography, a view from which Dr Young-Sánchez did not dissent.

114    Whilst Dr Young-Sánchez thought the figures were the heads of birds, she did not give evidence that the heads of birds were not found in Tiwanaku iconography and indeed she accepted at T109.30 that the use of the heads of birds was found in Tiwanaku iconography. Her point was somewhat different and was that the figural motifs had been used in a way which was not typical of Tiwanaku art. The use was atypical because figural motifs of this kind were ‘normally small-scale secondary elements’ (T109.30-31) and were not used in Tiwanaku iconography as prominent features or principal decorative motifs (as they were on the Artefact). Such elements generally appeared as an element in a larger and more complicated image or were in a secondary position such as within a border band.

115    I do not accept this aspect of Dr Young-Sánchez’s evidence in the absolute form in which it was expressed. Whilst I would accept that no examples have been produced from the archaeological record which include the use of figural motifs as a prominent and principal design feature, I am unpersuaded that this entails that the Artefact is not Tiwanaku in origin. There is no doubt that the heads of felines, deer and birds are used in Tiwanaku iconography. The real question is whether one can say, as Dr Young-Sánchez does, that the fact that there are no examples with such a motif being used as a prominent and principal feature entails that the Artefact is not an example of the Tiwanaku culture.

116    Dr Yates, for her part, certainly did not accept that this could be correct, saying forcefully that this approach put at nil the possibility of stylistic variation, a point which may have some force when one recalls that the Tiwanaku culture was extant for at least four centuries (and on the evidence of Dr Vranich possibly a little longer even than that). On the other hand, Dr Young-Sánchez thought, and Dr Yates agreed, that variation of this kind was likely to be slow given the religious nature of the Artefact and the laborious manner of its manufacture: T107.8-21. I take Dr Young-Sánchez’s point but I do not accept that Tiwanaku iconography came into existence in a fixed form and thereafter for several centuries remained entirely invariant. I thus do accept Dr Yates’s point that variation is possible.

117    The resolution of this issue might at that point have been regarded as somewhat equivocal but I consider that Dr Young-Sánchez’s evidence that the Artefact was made by someone familiar with the Tiwanaku culture although inexpert in its application must at this point be reintroduced to the debate. Given that the Artefact is at least hundreds of years old, the available range of persons who could meet that description is necessarily limited. There was no evidence of any trade in Tiwanaku objects for their cultural value prior to the 19th century and there was no evidence that anyone would assemble an object using Tiwanaku cultural motifs between 1000 AD when the culture apparently collapsed and the early 19th century when Europeans first became interested in the ancient art and archaeology of the Americas (as opposed to its treasure). In particular, the Applicant did not lead any evidence, and Dr Young-Sánchez did not suggest, that the Inca or the Aztec civilisations were in the habit of producing imitation Tiwanaku artefacts. Further, the evidence cannot sustain a conclusion that that there existed after the Spanish Conquest any expertise in stonework sufficient to make the Artefact in the knowledgeable but inexpert fashion suggested by Dr Young-Sánchez even if someone had been unexpectedly gripped by a desire to do so. The Applicant did not advance a hypothesis that the Artefact had been made by the Wari, for example (although I deal with this possibility below).

118    The Applicant sought to make a strength of this weakness. It submitted at ACS [85] that the fact that Dr Young-Sánchez had at first thought that the iconography and morphology of the Artefact was so unusual that it was most likely a fake or pastiche emphasised just how unusual from a Tiwanaku perspective it was. I see matters the other way around. The fact that Dr Young-Sánchez’s assessment of the Artefact led her to believe it was a fake or pastiche in my view tends, if it does anything at all, to weaken the balance of her evidence. Dr Young-Sánchez was certain it was a fake or pastiche and in that regard she was, with respect, demonstrably incorrect (as she later accepted). As it happens, I do not regard Dr Young-Sánchez’s evidence about iconography or morphology as being weakened by this aspect of the matter but I certainly do not accept the Applicant’s more ambitious submission that somehow by being wrong about the fake nature of the Artefact the value of Dr Young-Sánchez’s evidence on iconography and morphology was strengthened.

119    Once it is accepted therefore that the creator of the Artefact was familiar with Tiwanaku culture and that the Artefact is at least hundreds of years old, the possibilities as to its date of manufacture narrow to times either contemporaneous with the Tiwanaku culture or following not long in the wake of that civilisation’s collapse. In either case, Dr Young-Sánchez’s evidence implies that the creator was inexpertly attempting to effect the style of the Tiwanaku culture.

120    The competing hypotheses are then only these: (a) the use of the figural motifs in a prominent fashion is evidence that within the Tiwanaku culture the way in which figural motifs were used was subject to some variation; or (b) the variation evident on the Artefact indicates that, roughly contemporaneously with the Tiwanaku culture, someone familiar with that culture but lacking a mastery of its correct application created the Artefact in a fashion which a craftsman within the Tiwanaku culture would not have done.

121    One matter which undercuts the strength of (b) is Dr Young-Sánchez’s own evidence that the archaeological record is incomplete, even taking into account Dr Vranich’s evidence that there have been extensive excavations at the Tiwanaku sites in the Moquegua Valley and San Pedro de Atacama. Whilst I have explained why I do not find that evidence persuasive for the purposes of diminishing Dr Yates’s evidence concerning what the extant archaeological record does show about the iconography of the Tiwanaku culture, I do think it provides some reason to be a little circumspect in discerning stylistic prohibitions from that same record. I would accept that elements appearing in the extant archaeological record may be used as positive selection criteria to gauge the possibilities of the sculptural art of the Tiwanaku but I am more sceptical about the use of the archaeological record as a negative criterion of exclusion. For example, modern films contain depictions of electric cars from which one can certainly infer that some people in the 21st century drive electric cars. However, modern films do not generally contain depictions of smoking but it would be erroneous to infer that smoking was not an element of 21st century Western culture.

122    I therefore prefer the evidence of Dr Yates on this question to that of Dr Young-Sánchez. This is not the same as accepting that it has been shown on the balance of probabilities that the animal motifs on the Artefact are definitively Tiwanaku in origin. Rather, the findings I make are: (a) it is not shown by Dr Young-Sánchez’s evidence that the figural motifs are not Tiwanaku in origin; (b) the stylised figures are consistent with the Artefact having been made by the Tiwanaku.

(ii)    The Greek key feature

123    Dr Yates identified a second iconographic feature of the Artefact consisting of the use of a stepped band feature also known as a ‘grecia’ or ‘Greek key’ or ‘meander’ feature. At CB81, she said that the Greek key motif was ‘a very common element of Bolivian Tiwanaku incised stonework, as well as on Tiwanaku ceramics’. She added in the concurrent session that she had not been asked to provide a commentary on the presence of this motif ‘because it is such an accepted element of Tiwanaku ceramics that it’s just – this is something that’s there’: T116.22-23. Mr Condori also mentioned this motif although he referred to it as a wide band with continuous, vertically intertwined lambda shapes. It is unnecessary to enter the turbid waters where roils the question of whether the Greek key is a stylised snake although Dr Yates perilously flirted with the notion at T115.38. Regardless, both Dr Yates and Mr Condori thought the Greek key a typical Tiwanaku motif.

124    I did not apprehend Dr Young-Sánchez to deny that the Greek key feature was found in Tiwanaku art and she wisely avoided its anguine implications. But even so it was still put to Dr Yates that she was unable to produce a single example of the Greek key feature in Tiwanaku art. Since she had never been asked to do so before the moment she was asked that question during the concurrent session, her inability to proffer such an example whilst in the midst of her questioning is not something which undermines this aspect of her evidence. More may this be so when the questioning was not accompanied by any corresponding evidence from Dr Young-Sánchez to make good such a proposition.

125    The same observation may be made about a similar line of questioning through which Dr Vranich was cantered. However, at this point it is necessary to deal with a matter arising from the cross-examination of Dr Vranich. Dr Vranich was cross-examined about the visual similarities between three of the Artefact’s iconographic elements and those of other Tiwanaku objects. The cross-examiner was seeking to have Dr Vranich concede that the three elements exhibited by the Artefact were different. He was shown an image of part of the Artefact from a report prepared by a Mr Medina which was part of the materials provided to Dr Vranich for the purposes of his first report. The image is in the top right-hand corner of the set of images on CB367:

126    The apparent title to the set of images on this page is ‘Figure of Head with Big Deer Nose’, however, closer reading reveals that the relevant heading actually precedes the images on the previous page and is ‘Segmented Rectangle Type Top Belt’. Beneath that Mr Medina explains that: ‘The Ponce stela at Tiwanaku and many vessels and portraits of kerus and have a segmented rectangular band that are also present on the vessel’. There are four images on CB367. The one in the top right-hand corner is, as I have said, a close up of the Artefact and shows its upper band with rectangles. The other three images are of other Tiwanaku objects showing various bands with rectangles.

127    The cross-examiner put to Dr Vranich that the Artefact as depicted at CB367 (i.e. the picture in the top right portion) had three iconographic elements. The three elements were: (a) a rectangular band at the top where the rectangles were not separated from each other; (b) in the middle, stylised bird head motifs; and (c) at the bottom, a geometric recurring key design (also referred to as the recurring Greek key motif). This exchange then occurred at T116.30-117.10:

MR LANCASTER: All right. So, in the closeup image of the vessel on page 367 of the court book, it shows three – I want to suggest to you, three design elements: a rectangular band at the top where the rectangles are not separated from each other by segments; in the middle of the image, a large recurring bird head motif; and at the bottom, a Greek – recurring Greek key design, as it’s being called, in a rectangular form. And I want to suggest to you that nothing in any image that you’ve brought forward in your evidence, or that you’ve relied on in Mr Medina’s report, shows any known Tiwanaku capital excavated object that has any of those design features.

DR VRANICH: Okay. Thank you for repeating the question. The – I’m going to go a little bit with what Dr Yates say. I really wasn’t – the amount of objects that have symbolism on it is extensive. I could probably sit down for a week and find things that I could compare this to. I haven’t prepared that, because there is an extensive literature. My impression was, when I looked at this, I go, this doesn’t fall outside of anything that I would radically say, “Wow, this is completely and utterly wrong.” So, if you would like me to go and look for things, I could, but that was the level of the impression I had when I looked at this.

MR LANCASTER: Do you accept the proposition that I put to you, though, about the images brought forward by you or Mr Medina?

DR VRANICH: Let’s see. At the moment – so, I am – I don’t believe I brought any images forward in my report. And Mr Medina here, he has this – these three images, one from a statue, another one is a qiru from – from the lake, so it’s not from Tiwanaku. And the one below, I believe is from the Gateway of the Sun. So that’s another stone sculpture. And these have elements that appear to be – that have similarities with the – with our stone qiru in question, but they are not exact representations.

128    The question was whether any of these three features could be found in other Tiwanaku objects, including items depicted in Mr Medina’s report. Although the question was framed broadly, it was asked in the context of CB367, the only page to which Dr Vranich was directed for the purposes of this question. This explains why Dr Vranich gave his response only by reference to the three other images provided by Mr Medina at CB367.

129    The Applicant submitted at ACS [60(c)] that Dr Vranich’s independence and credibility was undermined by the fact he continued to insist that there were visual similarities between these three features and images in Mr Medina’s report even though such visual similarities were objectively not present, and in circumstances where Dr Vranich acknowledged that the images were ‘not exact representations’. At ACS [110]-[111], the Applicant further criticised Dr Vranich for not explaining the perceived differences between these three features and the examples provided by Mr Medina. I do not accept this criticism.

130    First, like Dr Yates, Dr Vranich was not on notice about this line of inquiry and had been given no opportunity to review Mr Medina’s report in this context before being asked this question. Had he been given that opportunity, or if the cross-examiner had drawn the relevant examples to his attention as I think would have been fair, only then would it have been appropriate to expect Dr Vranich to have addressed the subtle perceived differences sought to be teased out by the Applicant. As it happens, Dr Vranich was not taken to Mr Medina’s evidence about the Greek key feature on a Tiwanaku object at CB369 (a matter to which Dr Yates was not taken either). Further, the page the cross-examiner was asking about – CB367 – deals with the prevalence of segmented rectangle motifs on Tiwanaku objects and shows three other examples of a band with rectangles. The difference between those bands and the band on the Artefact lies in the segmented nature of those bands. Even so, I think it was apt to cause unnecessary confusion not to draw this directly to Dr Vranich’s attention and instead to embed this observation within an omnibus inquiry while expecting a specific response. It has certainly taken up quite a considerable amount of my time getting to the bottom of this. The course taken has also deprived the Court of Dr Vranich’s opinion on whether the segmentation is of any significance.

131    Dr Vranich’s response, about which the Applicant complains, is understandably pitched at a general level. He observed that there do exist similarities between the images at CB367 and the Artefact, while acknowledging that they are not exactly the same. Given the way the questioning proceeded, I do not think Dr Vranich can be criticised for this.

132    It is convenient at this point to deal with the Applicant’s submission at ACS [110(a)] that the images at CB367 provided by Mr Medina, purportedly examples of the ‘Head with Big Deer Nose’, were adopted by Dr Vranich as sound iconographic comparators despite these images objectively looking nothing like the central figural motif of the Artefact. But, of course, they would not because the ‘Head with Big Deer Nose’ heading refers to images on the following page of Mr Medina’s report. This submission therefore goes nowhere.

133    There is further significance to be gleaned from Dr Vranich’s response. His initial response in the face of this perhaps not entirely fair questioning was to say that he had not really had an opportunity to search the literature to find examples of the three motifs but his impression was that the motifs did not indicate to him that the object was not Tiwanaku. I accept that he had not had an opportunity to check the literature. I also accept his evidence that the three motifs did not indicate to him that the Artefact was not Tiwanaku. This is an important point. Dr Young-Sánchez did not suggest that any of the three motifs indicated that the Artefact had been made by any other particular civilisation. Likewise, the Applicant itself did not submit that I should find that the motifs were distinctive of some other Andean civilisation.

134    Further, as I have observed earlier, Dr Young-Sánchez had not dealt with the band containing the rectangles or the Greek key feature in her report and it was unreasonable to expect Dr Vranich, without notice, to pluck an artefact out of the air in the fashion it was suggested that he should.

135    In its written submissions the Applicant returned to the photographs in Mr Medina’s report. The submission was at ACS [107(b)] and had two elements. The first was that a comparison between the Greek key feature on the Artefact and the images provided by Mr Medina at CB367 failed to reveal any similarity. However, as I have explained, this is unsurprising because the heading to the images on CB367 is on the preceding page and identifies CB367 as being related to segmented bands containing rectangles rather than the Greek key feature. Depictions of the ‘Head with Big Deer Nose’ appear on the following page and the analysis of the Greek key feature on the page after that.

136    The second element in the submission was that the Greek key feature was found in cultural artefacts which could be found outside Bolivia. This submission was unaccompanied by a reference to the evidence which supported it. The Greek key feature was also referred to as a volute or a meander. I have been unable to find any evidence in the transcript or the Court Book that the feature was used outside Bolivia. As such, I do not accept this submission.

137    Returning to the iconographic debate about the Greek key feature, I find that it is typical of Tiwanaku art.

(iii)    The upper band with segmented rectangles

138    In addition to the details identified by Dr Yates, Mr Condori described some other features on the surface of the Artefact which he thought identified it as being Tiwanaku. The first of these was what he described as an upper band showing ‘segmented rectangles going from the top edge to the head of the feline, all around the vessel’. As I have just discussed, this was the subject matter of the images at CB367.

139    Before plunging into the testimony about this, it is convenient to examine more closely the bands depicted above at CB367. The Artefact shows an upper band containing rectangles. The other three objects show rectangles within the band but the band itself is segmented and each rectangle is contained in an individual segment. As a matter of language I think that the band on the Artefact may be described as ‘segmented’ inasmuch as it contains segments consisting of rectangles. But minds may differ on this. As such I do not think that there is anything in the Applicant’s submission that Mr Condori’s evidence in his report that the top band showed segmented rectangles was not to his credit. It was not put to him, I might note, that the rectangles were not segmented. I also have some doubt as to whether the translation of Mr Condori’s report from Spanish into English and his cross-examination through an interpreter allows one to be confident that the ambiguity in the English word ‘segmented’ was adequately conveyed in the process.

140    However, the denotation of the word ‘segment’ is not the real debate here. The real debate is that the three figures at CB367 have rectangles which are separated from each other by a line whereas the Artefact does not. Turning then to the other evidence:

141    In her report Dr Young-Sánchez did not mention the upper band or attribute significance to it one way or the other. Likewise, neither Dr Yates nor Dr Vranich mentioned the upper band in their reports. I have noted above a challenge was laid out to Dr Vranich to point to any Tiwanaku object having, inter alia, an unsegmented upper band with rectangles; that is, a band containing rectangles not separated from each other by a line. However, as I have already explained, the nature of this questioning meant that it did not yield much of value. During the concurrent session Dr Young-Sánchez appeared to accept that a segmented upper band was typical of Tiwanaku art although she denied that the upper band on the body of the Artefact was segmented: T109.24-32. I take Dr Young-Sánchez to be drawing attention to the absence of lines between the rectangles.

142    In any event, the evidence given by Mr Condori and Dr Young-Sánchez sustains respectively the propositions that an unsegmented band containing rectangles of the kind seen on the Artefact is typical of Tiwanaku art and that a band itself segmented is also typical. On the other hand, whatever one might call the upper band on the Artefact one cannot ignore Dr Young-Sánchez’s evidence that it was not typical of Tiwanaku art because it was not segmented. Since I would accept that the upper band is on one view not segmented, I must conclude that the evidence of Mr Condori and Dr Young-Sánchez on this point is in conflict in substance if not in form.

143    Neither Mr Condori nor Dr Young-Sánchez were challenged on the question of whether the upper band was typical of Tiwanaku art. On the other hand, Dr Yates who had until the concurrent session steered clear of the implications of the design of the upper band, was challenged to accept that it was not to be found in any other Tiwanaku object: T114.11-14. Her answer was as follows:

DR YATES: I would not characterise those as rising to the level of being unique. I think that all of the elements we absolutely see in other forms in Tiwanaku artworks and objects, and it’s not like we are suddenly seeing somebody – a Christian cross in the middle of this, or something that is unique that’s a shape that we don’t see anywhere at Tiwanaku. I think that we’re just seeing a point on the spectrum of what’s possible within the types of motifs that absolutely exist within Tiwanaku objects.

144    So far as I can see, this is the universe of evidence on this topic. As with Dr Young-Sánchez’s evidence about the figural motifs, I think one must be circumspect about discerning stylistic prohibitions from the available archaeological record. The fact that an unsegmented band containing rectangles has not yet been found at Tiwanaku does not necessarily imply that the use of such a band is not typical of Tiwanaku art particularly in light of Dr Young-Sánchez’s evidence about the limited state of the archaeological record and Dr Yates’s evidence about the possibility of variation within the canon. On the other hand, given the extensive excavations at San Pedro de Atacama and the Moquegua Valley, the lack of any artefacts containing such an unsegmented band is perhaps more persuasive. However, I am less persuaded by this where the manner in which this issue was raised effectively denied Dr Vranich and Dr Yates any opportunity to look for a band which was unsegmented.

145    The contest then is between Dr Young-Sánchez’s evidence that the band on the Artefact is not typical because the rectangles are not separated in their own segments (which I would discount slightly to bring to account the uncertainties of what may be discovered in the future) and Mr Condori’s evidence that the band is typical. On the basis of this evidence, I think it may be said that the band is distinctive of the Tiwanaku but it may be just as plausibly said that it is not. In that circumstance, whilst the respective evidence of Dr Young-Sánchez and Mr Condori would make reasonably open an inference in either direction, I am not affirmatively satisfied that the upper band is typical or not typical of the Tiwanaku. This entails that the Commonwealth has failed to prove that it is typical although I explicitly make no finding that it is not typical.

(iv)    The significance of the protruding feline head and whether the Artefact is a depiction of a kero

146    This feature is, of course, the single most striking aspect of the Artefact. Although the certificate of authenticity provided by the Artemis Gallery says that the Artefact has a ‘projecting jaguar effigy head’, Dr Yates preferred to describe the head as feline since the exact species the maker intended could never be known. However, Dr Yates felt that the depiction of felines in stone sculpture was an important and distinctive element of Tiwanaku iconography. She instanced a number of examples of full figure anthropomorphised stone felines which had been located at Tiwanaku or other sites in Bolivia which are known as chachapumas. Here is a chachapuma:

147    Mr Condori also thought that the feline-shaped zoomorphic head protruding from the Artefact’s hyperboloid shape was characteristic of Tiwanaku culture. In particular he thought that the mouth, nose, eyes and ears were typical examples of the culture.

148    I accept that felines are common in the iconography of the Tiwanaku. However, I also accept the evidence Dr Young-Sánchez gave during the concurrent session that they are also ‘a very common subject matter in many, many Andean civilisations’ which could be found ‘all the way up into Columbia and throughout Peru and Ecuador, and down into Chile as well’: T95.40-43.

149    Returning to the significance of the protruding feline head, it is next necessary to note that both Dr Yates and Dr Young-Sánchez gave evidence that a feline head protruding from a square base was a feature which appeared in Tiwanaku culture. Both gave evidence that such felines could be found on a common ceramic vessel known as an incensario which was used for burning incense. Dr Yates provided a number of examples of incensarios each of which clearly shows a feline head protruding from a square base quite similar to the feline head protruding from the body of the Artefact. Dr Yates also said that the incensario had a similar flared shape to the kero.

150    Dr Young-Sánchez thought that it was not an incensario because if it were then the protruding feline head and square base would be located on the rim of the vessel which they were not. She also thought that it was not a kero because if it were then the protruding feline head would be much smaller and the square base would be painted or incised directly onto the body of the vessel rather than extending out of it. It is implicit in this evidence that a kero can have a protruding feline head but not of the size evident in the Artefact.

151    By contrast, the view of Mr Condori, Dr Yates and Dr Vranich was that it was a kero (more precisely a depiction of a kero). I do not agree with Dr Vranich’s evidence at T86.38 that the Artefact looked like ‘your typical Tiwanaku ceramic or wooden vessel’. The large protruding feline head negates this possibility although, apart from the protruding feline head, I do agree that it looks precisely like a Tiwanaku ritual kero (as I have indicated above).

152    None of the witnesses suggested that the Artefact was an incensario and I am confident that it is not.

153    I have already noted that I do not accept that Dr Young-Sánchez’s evidence that the Artefact was too large and impractical to be used as a drinking vessel negates the possibility that it is a sculptural depiction of a kero. I do accept that it does demonstrate that the Artefact is not an actual drinking vessel which I do not really think that any of the witnesses disputed.

154    Understood in that light, it was Dr Yates’s opinion that the Artefact was a unique kero for, with one exception, she was unaware of another stone kero with a feline head projecting from it. The single exception was another stone kero sold at the same time as the Artefact by the same vendor and having the same provenance documentation. Since the nature of that object has not been the subject of debate it must be put aside as an example of a stone kero made by the Tiwanaku.

155    Dr Yates’s opinion that the Artefact was unique was similar to evidence given by Dr Vranich that the Artefact was more elaborate than any kero of which he was aware. It was, in his view, a technological and artistic achievement.

156    Against this evidence of Dr Yates must then be weighed the evidence of Dr Young-Sánchez that keros can have protruding feline heads (albeit not as large as is the case with the Artefact) with a painted or incised base (rather than the stone square which frames the head on the Artefact). An example of a kero with a protruding head appears amongst the examples of Tiwanaku ritual keros set out above at [83]. In view of the controversy between Dr Yates, Dr Young-Sánchez and Mr Condori about the nature of the animal head motif on the side of the Artefact I hesitate to say that the head in question is the head of a bird; still that is my best guess.

157     I would resolve the inconsistency between Dr Yates and Dr Young-Sánchez by concluding that there are no known examples of a stone kero with a protruding feline head but that keros with smaller protruding feline heads are not atypical in ceramic keros. I do not regard Dr Young-Sánchez’s evidence as throwing much light on the size of feline heads on sculptural depictions of keros in stone. I accept her evidence as far as it goes on how large feline heads are on ceramic keros but this is not a ceramic kero.

158    Mention should also be made of the fact that the protruding feline head is slightly askew or ‘canted’ from the horizontal. This was one of the features of the Artefact which initially persuaded Dr Young-Sánchez that it was a fake or a pastiche. The Applicant nevertheless relied on her evidence to demonstrate that even if it were not a fake or a pastiche the fact that the head was not quite straight implied that it was not Tiwanaku. Dr Young-Sánchez noted that Tiwanaku stone sculptors were ‘renowned for their precision and their skill’. The Applicant’s submission assumes that the fact that the head is not straight is unintentional and results from poor craftsmanship. Nothing about the Artefact persuades me that it is an example of poor craftsmanship. Consequently, I do not think that the fact that the head is askew is unintentional and it follows that I do not accept the submission that this shows that the Artefact is not Tiwanaku.

159    The choice is therefore between concluding that the Artefact is a unique example of a stone depiction of a kero with a feline head projected from a square base or that it is not a depiction of a kero at all. Once one accepts that it is not an incensario it is difficult to understand what it could possibly be apart from a depiction of a drinking vessel. Dr Young-Sánchez’s objection that it is too heavy and too large to be a drinking vessel does not accommodate the possibility that it is a depiction of a kero. Once that possibility is added to the picture, Dr Young-Sánchez’s evidence did not go on to suggest that the object depicted in the Artefact was something else, for example, a mortar.

160    On the other hand, the evidence of Dr Yates requires the conclusion that the Artefact is an unprecedented depiction of a kero in that it has a feline head protruding from its side framed by a square base. Further, the evidence of Dr Young-Sánchez allows one to add to its atypical nature the fact that the feline head is much larger than is the case with any known example of a functional ceramic kero.

161    One further aspect of the evidence should be noted. Mr Condori gave evidence under re-examination that the modelling of the feline head corresponded with the style and finishing of the Tiwanaku at Tiwanaku: T50.15-20. Attached to Mr Condori’s report at CB65-68 were a series of images the captions to which suggest that they depict objects from Tiwanaku. Some of these images include feline heads. Beyond a statement at CB68 (translated at CB40) that ‘the two sculptures and the seized artifact bear the same characteristic feline’, his evidence did not directly reference these images in the context of the modelling of the feline head. However, he also gave evidence at T44.33-45.28 about the location of the nostrils on the Artefact’s protruding feline head. In that context he did refer to the images at CB65 and said ‘we can see the identical morphology to the qiro of interest, where there are identical characteristics in terms of the ear, the eyes, the nose and the teeth’. Although Mr Condori did not explain in his report why the modelling of the feline head corresponded with Tiwanaku style and finishing at Tiwanaku I would infer it is because of his evidence at T44.33-45.28 and CB65-68. I accept this evidence in part. As I will shortly explain, I am unable to form a view on whether the crossed canines of the feline head, the number of its teeth or the position of its nostrils is typical (or atypical) of the Tiwanaku. However, the feline head has other features (such as ears and eyes) and in relation to those features I accept the evidence of Mr Condori which I did not apprehend to be disputed.

162    It is reasonably open to infer that the Artefact is a depiction of a kero. I am affirmatively persuaded that it is and I draw that inference. I also find that the Artefact is unprecedented in two ways: (a) there are no other known examples of a stone kero with a protruding feline head; and (b) the protruding feline head is larger than appears on ceramic keros. Ultimately, both Dr Young-Sánchez and Dr Yates accepted that the fact that the Artefact appeared in some way to be a kero put together with an incensario was without precedent. On the other hand, subject to the question of its teeth and the location of its snout, I also find that the feline head in style and finishing is characteristic of the Tiwanaku style at Tiwanaku.

163    The precise function of the Artefact remains unknown as the Applicant correctly submitted at ACS [90] although, as I have said, I am satisfied that it is ritual in nature. But I do not think that this observation amounts to very much. It is a depiction of a kero with some features of an incensario. Dr Vranich thought it a venerated object but I have already explained why I do not accept this, at least for the purposes of a civil trial. Dr Yates thought that it might have something to do with large stone beings who were probably engaged in some way with eating and drinking. I agree with the Applicant that one can but speculate about what the Tiwanaku did with the Artefact. However, this inability on the Commonwealth’s part to identify the precise ritual function that the Artefact served does not appear to me to impact on determining whether the Artefact is Tiwanaku in origin. No doubt, if its function were known then this would make a determination of what it actually is more straightforward.

(v)    The crossed canines of the feline and the number of its front teeth

164    Dr Yates gave evidence that the canines of the feline head were crossed which does indeed appear to be the case. Although in her report she expressed the view that Tiwanaku depictions of felines typically display crossed canines she also gave evidence during the concurrent session that felines with crossed canines were ‘something that we see across Andean cultures across thousands of years’ (T96.23) and that ‘crossed canines and feline imagery is not the hallmark of Tiwanaku’: T96.25-26. What I take from this evidence is that the presence of a feline head with crossed canines is not inconsistent with the Artefact having been made by the Tiwanaku although it is also consistent with the Artefact having been made by other Andean civilisations. That said, there was no evidence which suggested the Artefact as a whole was typical of any other identified Andean civilisation. Dr Young-Sánchez thought the Artefact atypical of the Tiwanaku in certain ways but she did not say that she thought it was typical of the Inca, Aztec or Wari civilisations for example.

165    On the other hand, Dr Young-Sánchez thought that the number of front teeth that the feline had was unnaturally large which she regarded as anomalous. I agree that the feline in question has a larger number of front teeth than any non-fictional feline I have encountered. On the other hand, fictional depictions of cats often include an unusually large number of front teeth, e.g., the Cheshire Cat. In her supplementary report Dr Yates did not engage with Dr Young-Sánchez on the number of front teeth which the feline had and this topic was not the subject of debate during the concurrent session. Dr Yates did accept that the Artefact displayed an array of iconographic features which had not appeared in association with each other in the archaeological record and it may be assumed that she included in that observation the Artefact’s dental plenitude. This combination of features was, in her view, what made it so unique and important.

166    On the question of the number of front teeth on the feline, I am not moved especially in either direction. Dr Yates’s report includes a depiction of a highly stylised feline which, on any view, exhibits an unusual array of front teeth although it is difficult to be certain that it does so in the same numbers as the feline head on the Artefact. This makes me think that perhaps not too much store ought to be placed on Dr Young-Sánchez’s evidence that the number of front teeth is anomalous. I do not find either that the number of teeth is distinctive of the Tiwanaku culture or that it is not. The evidence does not persuade me in either direction.

(vi)    The position of the feline’s nostrils in relation to its mouth

167    One of the highlights of the trial was the concurrent evidence given about the location of the feline’s nostrils which was certainly a pleasant break from the usual fare of the judges of this Court. Dr Young-Sánchez thought that the location of the feline figure’s nostrils and mouth were atypical because in Tiwanaku culture feline heads have nostrils that sit directly above and flush with the mouth. However, in the case of the Artefact the feline’s nose is set well back. In the concurrent evidence session she said that there were hundreds of feline snouts in the archaeological record but none of them looked like the Artefact, at least not in the published examples she had consulted: T106.27-29.

168    Dr Yates was challenged under cross-examination to identify any example of a Tiwanaku feline on an object excavated from Tiwanaku which had its nostrils located back from, rather than flush with, its mouth. Resort to the chachapumas set out above did not avail her since as she correctly observed ‘their face has been bashed off’: T105.38-39. The position of the nostrils on the chachapumas is therefore lost to history. She did say that she had seen reconstructions where the nostrils were set back but otherwise did not rise to the cross-examiner’s challenge. Resort by me to the various felines in the Court Book has not brought to light one with nostrils which are other than flush.

169    Dr Yates’s interrogation on the location of the feline’s nostrils took place on the first day of the concurrent session after which there was a break of several days before the second. I have already adverted above to the fact that Dr Yates took advantage of this hiatus to take to Twitter, as it then was, in search of a Tiwanaku feline whose nostrils were situated back from its mouth. I have rejected the submission made by the Applicant above that by so doing she was seeking to ‘crowd-source’ her expertise but it will be apparent from her examination on the first day why Dr Yates had gone in search of such a feline.

170    Dr Vranich also underwent further interrogation on the location of the nostrils at T106.1-18:

MR LANCASTER: Dr Vranich, are you likewise not aware of one other example of a feline head in a Tiwanaku-style object where the nostrils are set back from the snout?

DR VRANICH: I have to admit, I’ve really never concentrated that much on feline snouts while I was there. So at this point, unfortunately, the one person that would be best able to say that is not around with us anymore. Let’s see. There is only that one example, and the snout is broken. And then after that, we have feline heads in other media, such as ceramics, and then represented in other ways. Would you like a more precise answer, then?

MR LANCASTER: No. It – but perhaps you could answer broadly, even in ceramics, are you aware of even one example of a ceramic feline head with the nostrils set back from the front of the snout that is, in your view, comfortably attributed to Tiwanaku culture?

DR VRANICH: I – I would have to review. There are thousands of them. I can’t think of any offhand right now.

171    The Applicant submits that Dr Vranich had failed to answer this directly or responsively. Given the obscurity of the topic – namely, how far back the nostrils on a chachapuma might be located – I am not at all surprised at the answer he gave. Indeed, I would have been surprised and a little incredulous if Dr Vranich had asserted that he knew, without any review of the literature, that there were other examples of chachapumas with the nostrils set back from the snout.

172    Mr Condori too was drawn into the snout debate. It was put to him that the setting back of the nostrils showed that the Artefact was not made by the Tiwanaku: T45.20-23. This he denied, saying instead that the Artefact was ‘within the range and canon of production and manufacture of Tiwanaku art’.

173    It is open to infer from this evidence that it is not typical of Tiwanaku sculpture to depict a feline with its nostrils set back from its mouth. In favour of drawing the inference is the evidence of Dr Young-Sánchez. It is also open to draw the inference that there is nothing atypical about the Artefact’s snout. In favour of drawing that inference is the evidence of Mr Condori, the evidence of Dr Young-Sánchez concerning the limited nature of the archaeological record and the somewhat pallid evidence of Dr Yates that she had seen reconstructions where the nostrils were set back. To that one might add Dr Yates’s general evidence on the possibility of variation within the canon.

174    I am not confident that I can reach a conclusion on this one way or the other. I am not persuaded that the location of the nostrils is typical or that it is not typical. The question must remain open.

(vii)    Conclusion – made by the Tiwanaku?

175    Having surveyed the evidence about the appearance of the Artefact, it is then necessary to determine whether it was in fact made by the Tiwanaku. Dr Yates and Dr Vranich were sure that the Artefact was an example of the Tiwanaku culture and came from Tiwanaku or nearby to Tiwanaku.

176    By contrast Dr Young-Sánchez did not attempt to say who had made the Artefact but concentrated instead on those of its features which she regarded as atypical of the Tiwanaku culture. During the course of the exchange of the parties’ evidence, Dr Young-Sánchez’s position underwent considerable development. At the time she prepared her initial report, the Artefact had not been subject to x-ray examination. Based on a close inspection of various photographs Dr Young-Sánchez concluded that the Artefact was a fake or pastiche made in modern times. She accepted that it had been manufactured ‘by someone generally familiar with Tiwanaku art and artifacts but lacking any real understanding of Tiwanaku vessel forms and functions, religious imagery, or stylistic conventions’. It was her opinion that the Artefact was ‘either a reproduction/fake, or a pastiche composed of partly authentic elements that have been reassembled and augmented to create an object that is substantially inauthentic’. Indeed, it was her opinion that the Artefact deviated from the canons of Tiwanaku art in ways so great that she thought only scientific documentation of its excavation from an undisturbed archaeological site could establish its antiquity.

177    Thus it was her evidence that the Artefact had been assembled from at least two pieces of basalt with the protruding feline head being added to the body of the vessel at a later time which explained why it was slightly askew. She allowed that there were perhaps parts of the Artefact which were ancient, possibly fragments of a simply shaped vessel such as a mortar which had been adhered together. It was to this that the newly carved feline head was affixed and the bands of decoration were incised.

178    The opinion could not at all survive Ms McHugh’s evidence that x-ray examination of the Artefact showed that it had been made from a single piece of basalt or Professor Mavrogenes’s uncontested evidence that the patina on the Artefact showed that it was at least hundreds of years old. Dr Young-Sánchez’s evidence that the Artefact was a modern fake or pastiche cannot therefore be correct which, to be fair to Dr Young-Sánchez, she basically accepted once the evidence of Professor Mavrogenes and Ms McHugh became available. Dr Young-Sánchez did not, however, wholly abandon her theory for, during the concurrent session, she returned to it at T117.39-118.2:

DR YOUNG-SANCHEZ: Well, my strongest interpretation is that it probably is from the 20th century. I – and if the head had been separable, then it would be sort of a smoking gun that that was clearly the case. It’s not. It’s made in one piece. And so, you know, I – it’s not incontrovertible that this piece is made in the 20th century, but I don’t believe it was made by someone who was from – who was part of the classic Tiwanaku culture. To me, this is somebody who has a superficial familiarity with the elements of Tiwanaku art, but couldn’t put it together, couldn’t get the details right, couldn’t get the proportions correct, couldn’t assemble all of those elements into something that makes sense. And so to me, this is someone who is separated in time or space by some degree from classic Tiwanaku culture who made this.

179    However, this view is not available given the scientific evidence and it would have been better, I think, if Dr Young-Sánchez had abandoned it altogether. Ultimately, I do not think that she really persisted with it but its reappearance during the concurrent session leaves a slight question mark over her evidence about the iconography and morphology of the Artefact. In any event, by the end of the concurrent session Dr Young-Sánchez’s evidence about whether the Artefact had been made by the Tiwanaku was dependent for its efficacy only on her views about the iconography and morphology of the Tiwanaku. Although at one point Dr Young-Sánchez said that the Artefact bore ‘aberrant features’ (at T111.15) I consider that such a conclusion does not sufficiently account for stylistic variation at Tiwanaku and places too much weight on the admittedly limited archaeological record as a negative criterion of exclusion. As I have already noted Dr Young-Sánchez did not attempt to say that the Artefact contained iconographic elements which were distinctive of some other culture to the exclusion of the Tiwanaku. She did not say, for example, that the bird heads she identified were distinctive of the Inca or the Aztec.

180    To my mind, Dr Young-Sánchez’s evidence leaves hanging unanswered the question of who made the Artefact. This is not a criticism and the Applicant was most assuredly not bound to attempt any proof of this matter since it did not bear the burden of proof. The Applicant was permitted to play a spoiling game and to utilise the evidence of Dr Young-Sánchez to point out the problems with the Commonwealth’s case.

181    Even so, I do not think that Dr Young-Sánchez’s evidence at T85.29-30 that if the Artefact were an authentic object, then it was more likely to have been made at Tiwanaku than anywhere else assists the Commonwealth. The Applicant submitted that this was a concession based on the assumption that the Artefact was, in fact, Tiwanaku which I accept and which is borne out by the fact that Dr Young-Sánchez immediately qualified this statement by adding that it was not outside ‘the realm of possibility’ that the Artefact had been manufactured elsewhere or manufactured at Tiwanaku and then moved elsewhere.

182     Having dealt with the evidence, it is useful to begin with two facts which cannot be disputed. The Artefact is at least hundreds of years old and the images which have been incised on it were done with a percussive tool of non-modern operation. I would infer from this that it was made by someone expert in working in basalt to a similar level of skill to the Tiwanaku. Since it was made at least hundreds of years ago it is useful to ask who had skills of that kind.

183    Dr Yates and Dr Vranich gave evidence (at T83-84) that modern attempts to recreate this form of stonework using ancient methods had been unsuccessful which I accept. It was not suggested by the Applicant that it should be found that the Artefact had been manufactured by Europeans hundreds of years ago and that hypothesis may be put aside.

184    All that remains therefore are two competing hypotheses: first, that the Artefact was manufactured by the Tiwanaku; and second, that it was manufactured by some other unidentified civilisation. These hypotheses should be tested against the facts as found about the Artefact.

185    The following matters suggest that the Artefact is an example of the Tiwanaku culture:

(a)    the Greek key feature is typical of the Tiwanaku culture;

(b)    the highly stylised figures on the body of the Artefact, whatever they are, are consistent with the Artefact having been made by the Tiwanaku; and

(c)    the style and finishing of the feline head (apart from its teeth and the position of its snout), viewed in isolation, is typical of the Tiwanaku at Tiwanaku.

186    The following matters suggest the Artefact is atypical of the Tiwanaku culture as it is presently understood:

(d)    the Artefact is a stone kero with a projected feline head no other example of which is known; and

(e)    the projecting feline head is larger than is usual with ceramic keros.

187    The following matters are indeterminate and I am unable to make a finding at the civil standard one way or the other as to whether they are typical or atypical:

(f)    the upper band containing rectangles;

(g)    the crossed canines of the feline;

(h)    the number of the feline’s front teeth; and

(i)    the setting back of the nostrils from the mouth of the feline.

188    Neither of the atypical matters in (d)-(e) were said to be suggestive of some other Andean civilisation. If the Artefact was manufactured by another civilisation the question would then arise as to why it has upon it the typical Greek key motif characteristic of the Tiwanaku culture in (a). Dr Young-Sánchez’s evidence provides a possible answer: the person who manufactured the Artefact was seeking to effect the style of the Tiwanaku culture although was somewhat inexpert in doing so. The Greek key feature and the stylised animal head figures on the body of the vessel show that the person was familiar with the Tiwanaku culture. But despite this slight level of familiarity, under this theory the person: (i) had not realised that the Tiwanaku would not make a basalt kero with a protruding feline head; (ii) would have realised that if there were to be a head, it needed to be smaller; and (iii) would have painted or incised any frame for the feline head on the vessel rather than making it a physical mount for the feline head. On the other hand, one might view these matters as showing only that the Artefact was Tiwanaku in origin and that the supposed errors of style described by Dr Young-Sánchez are in fact merely stylistic variations within the culture.

189    This last observation can be put more precisely. The established facts reveal that the Artefact has features which are distinctive of the Tiwanaku culture but also features which appear to involve elements which do not appear in the current archaeological record. Fully stated the two competing hypotheses are only these: (a) the Artefact was made by the Tiwanaku and the variations are just ordinary variations of style within that culture; or (b) the Artefact was made by a person in a different civilisation who was attempting inexpertly to give the Artefact the appearance of Tiwanaku culture. On this latter hypothesis, the extant variations are to be explained on the basis of the creator’s lack of expertise.

190    Both hypotheses fit the findings I have made about the Artefact.

191    In my view, the first hypothesis is more likely than the second. There are two reasons for this. First, there is no doubt the manufacture of the Artefact involved a great deal of work as Dr Vranich explained in his report. The Tiwanaku did not use iron. Thus, if it were made by the Tiwanaku, its manufacture would have involved either hand grinding with another stone or the use of a piece of metal such as bronze arsenic which would have required reforging after a few blows. There was no evidence presented about the techniques used by other nearby civilisations to fashion stone objects hundreds of years ago, but the evidence of Ms McHugh demonstrates that the Artefact was made with non-modern, non-mechanical hand tools. The incisions were made by the percussive action of a sharpened tool. On any view, the amount of work involved in the manufacture of the Artefact was substantial.

192    The devotion of significant time and effort to the manufacture of the Artefact signifies that whoever made it thought the effort justified for the ritual purpose I am satisfied the Artefact had. I think it unlikely that a person in another civilisation would deploy that kind of effort to produce an object having the cultural features of a different civilisation. And, as I have already observed, there is no evidence that that Aztec, Inca or Wari engaged in reproductions of Tiwanaku art although I do not discount that Wari imagery is similar to Tiwanaku imagery (I return to Wari imagery later in these reasons).

193    Secondly, the limited archaeological record which is available makes the fact of the variations less impressive than it might otherwise be in demonstrating a non-Tiwanaku origin. If the Artefact were apparently Roman then the extensive archaeological record of Roman society might allow one to be much more definitive about the significance of the variations but, as Dr Young-Sánchez correctly observed, there are relatively few people working in the field of Tiwanaku iconography and the documentation of Tiwanaku is far from complete.

194    Dr Yates suggested that Ockham’s razor also indicated that the first hypothesis should be preferred. I do not consider that it would be appropriate to apply the parsimony principle to theories which seek to explain why things are presently as they are; here, why the Artefact exhibits variations from the Tiwanaku canon. For example, the fact that I was late to work today may be most simply explained by the theory that I slept in whereas the theory that I was delayed by unexpected roadworks which caused me to divert to a different route where I encountered a traffic jam is much more elaborate. I do not think Ockham’s razor could be correctly applied to the question of why I was late to work to conclude that it is more likely that I slept in. In a more serious vein, the theory that the French Revolution was caused by the excesses of Louis XVI and his wife is unlikely to be correct merely because it is simpler than other theories such as the complex interplay between the Estates system, enlightenment thinking and the American Revolution.

195    Thus whilst the first hypothesis is simpler than the second I do not think that it makes it historically more likely. Accordingly, I specifically exclude the superior simplicity of the first hypothesis from the analysis.

196    Since there are only two hypotheses, the conclusion that one is more likely than the other entails also that it is also more likely than not (for the reasons I have given above). I therefore conclude that the first hypothesis is established at the civil standard. For the purposes of a civil trial, I am affirmatively persuaded that the Artefact was made by the Tiwanaku. Put shortly, it has typical Tiwanaku features and there are no other plausible candidates for the culture that made it once it is accepted that it is at least hundreds of years old.

6. WHERE WAS THE ARTEFACT MADE?

197    Dr Yates felt that the fact that the Artefact was made from basalt linked it to the Bolivian heartland of the Tiwanaku. She observed that the chachapumas to which she had earlier referred were also made from basalt. The use of basalt in her opinion strongly linked the piece to the limited region around the site of Tiwanaku. Mr Condori noted the existence of the basalt chachapumas to which Dr Yates referred calling them ‘outstanding zoomorphic sculptures’ and observed that such basalt objects reflected the expertise and cultural tradition of the region centred around Tiwanaku on the south-eastern shores of Lake Titicaca.

198    Dr Vranich said that basalt objects had only ever been found at the site at Tiwanaku with the exception of a carved stone object found at the site of Lukurmata, one valley to the north of Tiwanaku. But even that object had been made at Tiwanaku and dragged over the low hills. Whilst it was true that Tiwanaku objects had been found at other sites in Chile and Peru, they were made from ceramics, textiles or metals that had been pounded into thin sheets. Such objects were much lighter than basalt objects and could be more easily transported on llamas which were the beasts of burden during the pre-Columbian period. Despite the excavation of hundreds of graves at the sites in in Peru and Chile no basalt object has ever been found.

199    The basalt used for the objects made at Tiwanaku had been linked by chemical analysis to Tiquina, a nearby peninsula on Lake Titicaca within the borders of Bolivia. This analysis had been carried out by a portable XRF instrument. This evidence was to an extent inconsistent with Mr Condori’s evidence that the basalt from which objects at Tiwanaku were carved came from a quarry at Querimita. The Applicant submitted that I should not accept this aspect of Mr Condori’s evidence and that it impacted on his credit: ACS [52(c)]. However, I have no means of determining which is correct; it is possible both are correct, and whether the basalt comes from Querimita or Tiquina is not an issue which needs to be resolved since both are proximate to Tiwanaku. I therefore am unable to accept the submission.

200    Dr Yates felt that the sites outside of Bolivia did not achieve the fine stone working techniques seen at the Bolivian sites. Whilst there were dressed stone features at Omo in the Moquegua Valley and possible temples at sites at other locations in Peru, none of these involved cut stone blocks of the kind seen at the Bolivian sites. In particular, Dr Yates did not think that basalt stonework was found at any of the sites in Chile or Peru because the artisanship required to work with basalt and produce an object of such quality was only found at Tiwanaku and the sites in its immediate hinterland. Dr Vranich shared this opinion.

201    For her part Dr Young-Sánchez thought that tombs in the Moquegua Valley had yielded a Tiwanaku-culture temple which included carved stone components. I assume these are the dressed stone features mentioned by Dr Yates. Whilst Dr Young-Sánchez gave evidence about the San Pedro de Atacama settlement site in the Atacama Desert and the objects found there, she did not say that any of the objects included stonework. Further, Dr Vranich thought that none of the hundreds of grave sites excavated in Peru or Chile had ever disgorged a basalt object.

202    In her initial report, Dr Young-Sánchez took issue with Dr Vranich’s statement that no basalt object made by the Tiwanaku had ever been found outside Tiwanaku. She drew my attention to the existence of a Tiwanaku basalt object held in the Ethnological Museum of Berlin. It had been ‘collected’ (Dr Young-Sánchez’s word) in Puno in Peru in 1888. However, as Dr Yates noted in her supplementary report, all that is known about this object was that it had been purchased in Puno by a doctor in the late 19th century. During the concurrent session Dr Vranich also expressed the opinion that the provenance of the object collected at Puno was unknown. Dr Yates did not think that it was legitimate to infer that the Puno object had in fact been manufactured at Puno. I agree with this point. Dr Yates also gave evidence under cross-examination that the object had been removed from Bolivia before 1906: T145. I accept this evidence. I find that the Puno object is Tiwanaku, was removed from Bolivia before 1906 and was first documented in 1888.

203    For completeness, it is useful to assume that the Applicant’s case theory included the suggestion that the Artefact had been manufactured in the Moquegua Valley or at San Pedro de Atacama. Making that assumption, there was no evidence that there were any Tiwanaku basalt quarries in either place and the absence of such evidence coheres with the fact that no basalt objects have been found in either place. There was some evidence, however, that there was basalt in the Moquegua Valley and the Atacama Desert. This evidence emerged during the cross-examination of Mr Condori who in his report that said that black basalt was ‘the most common extrusive igneous rock on the planet’. He was cross-examined about this at T47.43-48.26:

MR LANCASTER: Mr Condori, black basalt can be found in the land to an extensive extent all around Lake Titicaca, including Bolivia, Peru and Chile, correct?

THE INTERPRETER: In large quantities, it is found in Bolivian territory; specifically, in the site of Querimita in the Department of Oruro.

MR LANCASTER: Yes, but you - - -

THE INTERPRETER: In the quarry - - -

MR LANCASTER: But you agree it’s found in - - -

THE INTERPRETER: - - - of Querimita.

MR LANCASTER: I’m sorry. You agree it is found in other areas, including in areas of modern day Peru and Chile, to which Tiwanaku culture spread.

THE INTERPRETER: So that is correct, but it was the Tiwanakato culture which had the ability and the knowledge to recognise the quality of the raw material of this black basalt and the – the material was therefore extracted from the Querimita quarry in the Department of Oruro.

MR LANCASTER: There’s no scientific analysis of the object the subject of the court proceedings to show it is black basalt from Bolivia, is there?

THE INTERPRETER: There – we have not been able to do a petrographic analysis of the item in question specifically, but there is a PhD thesis done by an archaeologist, Martín Giesso, who has done petrographic analysis of the basalt – the black basalt used by the Tiwanaku culture and links it directly to the – to Querimita. This archaeology – archaeologist has specifically looked at Tiwanaku elements and identified, in a complementary and analogous way, that the stone comes from Querimita.

204    The Applicant submitted that Mr Condori had been inexplicably non-responsive to these questions and had sought to make an unsupported connection between the Artefact being basalt and it therefore having a connection to Bolivia. Mr Condori gave his evidence from Bolivia by video link and through a Spanish interpreter. I agree with the Commonwealth that Mr Condori was a respectful man doing his best to give useful evidence although some of his evidence was redolent perhaps of an enthusiasm for the recovery of items of Bolivian cultural heritage. Despite that, I was not struck at the time that he gave his evidence that he was attempting to be uncooperative and the difficulties which existed may adequately be accounted for by the medium in which his evidence was given. Importantly, the cross-examination did not establish the existence of any basalt quarries in either the Moquegua Valley or the Atacama Desert.

205    At this point, the evidence would reasonably support the drawing of an inference that no Tiwanaku basalt object has ever been recovered from a site outside Bolivia. The object purchased at Puno proves little since as I have explained I am satisfied that it was made in Bolivia.

206    However, Dr Young-Sánchez picked up this theme more generally by observing that there were many stone objects of apparently Tiwanaku origin held in collections and museums whose provenance is unknown. Whilst I accept this evidence, it proves nothing about where basalt Tiwanaku objects were manufactured and, in particular, it does not prove that they were manufactured at any place other than Tiwanaku. The highest that it can be put is that the unprovenanced basalt objects demonstrate that the manufacture of basalt objects away from Tiwanaku was not impossible. I accept that it is not impossible but here the question is whether it is more likely than not that basalt Tiwanaku objects were made at Tiwanaku.

207    The question then becomes whether this evidence undercuts the evidence of Dr Vranich that no basalt object has been recovered from a Tiwanaku site outside Bolivia. I do not think that it does. Since by definition it is not known where the basalt objects without provenance originated it follows unavoidably that it is not known that they come from Chile or Peru. Hence, nothing which is known about these objects detracts from Dr Vranich’s opinion.

208    The evidence therefore continues reasonably to sustain the inference that no basalt Tiwanaku object has ever been recovered from the sites in Chile or Peru. The question then is whether that inference should be drawn. I think that it should. I find that there is no evidence that a basalt object was ever made by the Tiwanaku outside of Tiwanaku.

209    By itself this would persuade me that the Artefact was made at Tiwanaku. There is an additional reason for reaching this conclusion. Dr Yates also gave evidence that the style of keros was subject to regional variation and hence was a marker of the place of origin. In her opinion, the style of the Artefact linked it to the site of Tiwanaku. Mr Condori too thought that the style of Tiwanaku keros made away from Tiwanaku had local characteristics that distinguished them from the keros made at Tiwanaku: T37.27-29, 43.28-29. Both thought the Artefact displayed iconography typical of the city of Tiwanaku. The Applicant sought to undercut the effect of this evidence by pointing to evidence given by Dr Vranich that there could be great differences in the way that a feline could be depicted in the canon of the Tiwanaku artistic tradition: T101.2. But as the reader will no doubt by now be aware, Tiwanaku keros do not usually feature felines at all. In relation therefore to the subject of regional variation in the style of keros I do not think that regional variation in the depiction of felines is relevant. In particular, I do not accept the submission that the feline head was an anomaly which suggested that the Artefact was not made at Tiwanaku. It is anomalous but the anomaly is silent on regional variation in the style of Tiwanaku keros (of which I am satisfied the Artefact is a depiction). I therefore accept the evidence of Dr Yates and Mr Condori that the style of kero depicted by the Artefact (sans the feline head) is typical of keros found at Tiwanaku. This conclusion underscores the correctness of the conclusion that the Artefact was manufactured at Tiwanaku. It is also consistent with the concession made by Dr Young-Sánchez that if the Artefact was Tiwanaku it was probably from Tiwanaku although I have not placed primary reliance on that concession. Leaving aside the atypical presence of a protruding feline head on a stone kero, there is of course also the evidence of Mr Condori that the style and finishing of the feline head is typical of the Tiwanaku.

210    This is sufficient to conclude that the Artefact is part of the movable cultural heritage of Bolivia.

211    It follows that the Commonwealth has proven at the civil standard that the Artefact was made by the Tiwanaku at the city of Tiwanaku. The evidence of Dr Yates, Dr Young-Sánchez and Dr Vranich is all to the effect that the Artefact is exceptional although they differ in what follows from that exceptionality. Nevertheless, the evidence sustains the observation not only that the Artefact was made by the Tiwanaku at Tiwanaku but that it is an exceptional and unique piece of archaeological significance.

7. WAS THE ARTEFACT EXPORTED FROM BOLIVIA AFTER 1906?

212    This is a complex topic involving competing hypotheses about the Artefact’s removal both before and after 1906. It is useful to begin by outlining the hypotheses.

The Commonwealth’s post-1906 removal hypotheses

213    The Commonwealth sought to prove that the Artefact was exported from Bolivia after 1906 by putting forward two alternate hypotheses which it says between them are more likely than not. These are that:

(a)    it was amongst the objects excavated by Dr Casanova in Tiwanaku in 1934; or

(b)    it was looted by persons in or around 1950.

214    The fact that the Artefact was removed from Tiwanaku makes it difficult to determine the exact date of its removal for, as Dr Yates observed, the act of removal obscures its own circumstances. Dr Yates, Dr Vranich and Dr Young-Sánchez all agreed at T102-103 that the location where an object is found is a very important piece of information; indeed, Dr Yates described it as the core of archaeology: T102.37. Here this singular piece of information is the piece which is missing. The deficit afflicts both of the central aspects of the case. It affects the question of whether the Artefact was made by the Tiwanaku (which would be clear if it was known that it had been excavated from Tiwanaku) and it afflicts the question of when the Artefact was excavated which would likewise be known if the circumstances of its excavation were available.

215    In the case of the iconography and morphology of the Artefact I have not felt that this missing piece of information was an insurmountable impediment in determining whether the Artefact was made by the Tiwanaku. However, the Applicant submitted that it was also an impediment to determining when the Artefact was excavated which necessarily reduced the various opinions proffered to mere speculation: ACS [71]-[72]. As will be seen, I do not accept that the evidence about when it was originally excavated is so meagre that a conclusion about it cannot properly be drawn. The balance of this section will hopefully explain why.

216    Dr Yates did not think that the provenance documents provided with the Artefact allowed one to draw the conclusion that it had been removed prior to 1906. I accept this. All that may be inferred from the provenance documents is that it was acquired by Mr Osona in the 1950s in Buenos Aires from somebody else possibly at the Antigua Casa Pardo.

217    Dr Yates’s opinion was that prior to the late 1940s interest in Bolivian archaeological objects was limited to Bolivian and international archaeological experts and a handful of local private collectors. Dr Yates has a particular expertise on the topic of the illegal flow of archaeological objects out of Bolivia which she researched for the purposes of her doctoral dissertation and her subsequent publications. She thought that a relatively small number of objects had left Bolivia prior to that time. These exportations were carried out by foreign archaeologists, European diplomats and a select group of Bolivian nationals that had connections abroad. Most of these objects went almost directly into museums and were well known to archaeologists. At this time, there was insufficient demand for Bolivian archaeological objects to sustain a thriving trade beyond Bolivia’s borders. Even within Bolivia the trade could not be described as thriving. To similar, although not identical effect, Dr Vranich thought that prior to 1906 a series of well-funded scholars took the route from Argentina to Bolivia with the intention of purchasing choice pieces for collections.

218    Dr Yates felt that this situation had changed when the art market caught up with the interest some modern artists had expressed in non-European artworks. Chief amongst these were Picasso and Moore who derived inspiration from ‘primitive’ art. Commencing in the late 1940s, but reaching its peak in the 1950s and 1960s, there was a demand for primitive artworks generally and, more specifically, for pre-Columbian works. This included Tiwanaku objects. The increased demand for such objects created the climate for looting which Dr Yates says began in the late 1940s. That Dr Yates attributed the wide scale looting of pre-Columbian cultural objects which occurred in the middle of the 20th century to artists such as Picasso is certainly an illustration of how ostensibly harmless aesthetic impulses can have unintended negative consequences on a large scale.

219    Subsequent to the looting which began in the culturally disastrous wake of Picasso, steps were taken by Bolivian authorities to staunch the outflow of its cultural patrimony. This was unlike Peru, Ecuador and Columbia which have been less firm in the steps they have taken to prevent the exportation of their cultural heritage. In Dr Yates’s view, the late 1940s and 1950s represented a brief window in which the export of Bolivian archaeological objects was feasible and rife.

220    It was thus Dr Yates’s view that whilst there were many Tiwanaku objects which were removed prior to 1906 the provenance of these objects was always known since the persons who had removed them had no reason to conceal their removal. This was consistent with Dr Vranich’s evidence that he had examined the contents of collections of known Tiwanaku objects assembled prior to 1906 and found no trace of the Artefact. He felt that such a remarkable piece would have been documented had it been removed before 1906. Dr Yates went somewhat further and said that she knew of no Tiwanaku object which had been exported prior to 1906 which did not have an established provenance.

221    Thus both Dr Yates and Dr Vranich were united in their view that the lack of provenance for the Artefact was a strong indicator that it had been removed from Bolivia after 1906. They differed however on the question of when during the 20th century it had been removed. Dr Yates thought that the brief window between the late 1940s and 1950s when the illegal trade in Bolivian artefacts flourished was the most likely period during which the Artefact had been removed from Bolivia. Within this window, she concluded that the most likely date of export was in or around 1950.

222    Dr Vranich, on the other hand, thought that there had been a black market for objects like the Artefact between 1910 and 1940 and for that reason placed its removal in that range. Here Dr Yates and Dr Vranich to an extent differed because Dr Yates did not think that there was much interest in Tiwanaku objects before the late 1940s beyond the ranks of archaeological experts and a handful of local private collectors. On the question of the market dynamics of the trade in Tiwanaku objects I would generally prefer the evidence of Dr Yates to that of Dr Vranich since it is her area of particular expertise. On the other hand, on the history of actual excavations at Tiwanaku by real archaeologists I was impressed by the evidence of Dr Vranich who seemed to have spent more time at Tiwanaku than Dr Yates or Dr Young-Sánchez (although both had spent considerable time there) and to be more intimately familiar with the history of the archaeologists who had visited the site. Once I have explained Dr Vranich’s theory of how the Artefact came to be removed from Tiwanaku, I will return briefly to this topic to explain why I do not think that this difference between Dr Yates and Dr Vranich matters.

223    Dr Vranich was able to narrow the range of 1910-1940 to a likely date of removal in the mid-1930s on the basis of known excavations. In particular, he noted that most intact archaeological pieces of high value were found in 1934 during excavations by the archaeologist Dr Eduardo Casanova. Dr Casanova had excavated 25 pits in Tiwanaku’s cemetery area where intact objects were most likely to be found since they were intentionally buried. Mr Condori also gave evidence confirming that Dr Casanova had conducted excavations at Tiwanaku in 1934 the results of which had been published in Argentina.

224    The results of Dr Casanova’s 1934 excavation had been placed on a train which was bound for Argentina. However, it was stopped at the Argentinean border by customs officials. Many of the objects on the train passed through the hands of various persons (including a customs official who held one of the three largest private collections of Tiwanaku objects called Fritz Buck). Most of these eventually found their way into the hands of the Bolivian government although some 3,644 objects remain in storage and on display in Prague. All of the objects removed from the train are therefore well-documented. However, some of the objects remained on the train and eventually found their way to Buenos Aires. Dr Vranich thought that the Artefact was likely amongst these objects. I took from his evidence that the residue of Dr Casanova’s 1934 excavations after the encounter with Fritz Buck and others was not well-documented.

225    Mr Condori’s evidence about this was more general but he noted that some of Dr Casanova’s excavated items had ‘enriched’ the Museum of Ethnology in Buenos Aires, a state of affairs it was apparent he thought regrettable. Mr Condori thought that Dr Casanova’s work had spread the word about the Tiwanaku site and this may have resulted in clandestine digs prior to 1950.

226    On this evidence the excavations of Dr Casanova may, therefore, have directly resulted in the uncovering of the Artefact in 1934 when the cemetery pits were dug or alternatively resulted in its clandestine excavation before 1950 when news of Dr Casanova’s successes in his 1934 expedition to Tiwanaku spread to the artefact-collecting public.

227    It will be seen therefore that Dr Vranich’s account of a black market in Tiwanaku objects during the period 1910 to 1940 does not form part of the reason he advances for how the Artefact came to be discovered. In particular, unlike Dr Yates, he does not ascribe the removal of the Artefact from Tiwanaku to looting to meet the demands of the black market but rather to an orderly process of archaeological excavation. Thus, whilst I prefer Dr Yates’s evidence on when the black market arose to Dr Vranich’s, his conclusions do not rest on the existence of that black market. Whether or not a black market existed by 1934, there seems little doubt that a number of objects excavated from Tiwanaku found their way to Buenos Aires that year and, through mechanisms which are unclear, some of these ended up in a museum there. Some also seem to have passed through the hands of at least Fritz Buck in Bolivia but, as Dr Vranich noted, this part of the cache is well-documented. As such, Dr Vranich’s view is that the Artefact likely formed part of the residual cache of objects that remained on the train to Buenos Aires.

228    The Applicant submitted at ACS [130] that it was significant that Dr Yates and Dr Vranich differed on why they thought the Artefact had been removed after 1906. I do not agree. They had alternate explanations for why it left after 1906. I consider it legitimate for the Commonwealth to use their evidence in a cumulative fashion. Whilst they are inconsistent on when after 1906 the Artefact was removed, they are consistent on the fact that it was removed after 1906 which is the issue in the case. In that sense, they are not mutually exclusive as submitted.

The absence of challenge by the Applicant to the factual underpinnings of the Commonwealth’s post-1906 removal hypotheses

229    Although the Applicant attacked the evidence of Dr Yates and Dr Vranich, these attacks related to their evidence about the improbability of the Artefact’s removal from Bolivia prior to 1906. I did not apprehend the Applicant to deny the events surrounding Dr Casanova’s expedition in 1934 or Dr Yates’s description of the looting which occurred in the late 1940s and 1950s or her diagnosis of its causes.

The Applicant’s pre-1906 removal hypotheses

230    In the path of the two hypotheses advanced by Dr Yates and Dr Vranich, the Applicant placed a series of hypotheses which, if accepted, suggested a date of removal before 1906. Before turning to those it is convenient briefly to recall the relevant legal issues. The Plurinational State of Bolivia did not exist until 1825. Section 14(1)(a) will not be engaged unless the Artefact ‘has been exported from that country’. If before 1825 the Artefact had been removed from what would, but had not yet, become Bolivia, I do not think that it could be said that it been exported from Bolivia within the meaning of s 14(1)(a) so that the Commonwealth would fail for that reason. That conclusion makes it unnecessary to wrestle with the much more difficult question of whether an object removed from Tiwanaku by the Inca to their capital, Cuzco, in what is now Peru would mean that the Artefact was part of the movable cultural heritage of Peru or whether it would still be part of the movable cultural heritage of Bolivia or perhaps whether it would be part of the movable cultural heritage of both nations. One may also put to one side the incendiary proposition that if the Artefact was taken during the Colonial Period it might have constituted part of the movable cultural heritage of Spain.

231    If, on the other hand, the Artefact was removed between 1825 and 1906 then, whilst Bolivia existed, export of the Artefact would not have been unlawful under Bolivian law so that s 14(1)(b) would not be engaged and the Commonwealth would fail for that reason.

232    The Applicant posits for consideration, or at least flirts with, the following hypotheses to explain how the Artefact might have been removed from Tiwanaku before 1906:

(a)    transfer by the Tiwanaku themselves to Tiwanaku sites in the Moquegua Valley in Peru;

(b)    transfer by the Tiwanaku to a Tiwanaku site in the Atacama Desert in Chile;

(c)    transfer by the Tiwanaku to islands within Lake Titicaca;

(d)    transfer by the Tiwanaku to sites along the Pacific coastline;

(e)    manufacture by the Tiwanaku at a site outside Bolivia;

(f)    exchange of goods with the Wari in the Moquegua Valley;

(g)    manufacture by the Wari in the Moquegua Valley;

(h)    gift-giving in the 15th century;

(i)    removal by another civilisation such as the Inca or the Aztec;

(j)    removal by treasure hunters during the Colonial Period; or

(k)    removal by archaeologists or other collectors principally in the 19th century.

233    Hypotheses (a)-(i) all place the Artefact outside Bolivia before the Spanish Conquest. There was some evidence about this. Dr Young-Sánchez gave evidence in her report that it was possible that the Artefact had been removed before the Spanish Conquest. However, her report did not address the detail of options (a)-(i) although in relation to (f) and (g) she did refer to the fact that the Wari were regarded as disseminators of Tiwanaku-style artefacts. She was not cross-examined to suggest that removal along the lines of (a)-(i) was not possible and indeed one may accept that its removal in any of these fashions is possible in the sense that at a distance of more than a millennium no one can say any of them is impossible.

234    Pitched at this level, however, Dr Young-Sánchez’s evidence is really little more than a thought experiment. I can imagine that the Artefact was taken by the Inca but the vividness of my imagination in that regard provides little material from which I could rationally assess the probability that such an historical event actually occurred.

235    Dr Vranich made a general point against each of the Applicant’s removal hypotheses. This was that the nature of the Artefact indicated that it had been venerated and that this, together with the amount of time it would have taken to make, indicated that it was not an object which should be moved. As such, the circumstances of its removal would be limited to extreme events such as theft, conquest or the spoils of war. As I have explained previously, whilst Dr Vranich may well be correct that the Artefact was venerated, I do not feel that I can be satisfied that this is so at the civil standard. I therefore do not think that I should act on this aspect of his evidence.

236    The Applicant was not unaware of the general methodological difficulty it faced and actively sought to address it by adducing evidence through the cross-examination of Dr Vranich and Dr Yates and by the tender of a limited range of documents most of which became the very interesting Exhibit 4. Most of the hypotheses (a)-(k) were explored with them (although some were not) and, in my view, the probabilities of these hypotheses largely rise and fall with their evidence rather than with Dr Young-Sánchez’s conception of what lies in the realm of the possible (leaving aside in that remark her specific evidence about the Wari).

237    The decision by the Applicant to explore hypotheses explaining the removal of the Artefact before 1906 is conceptually significant in assessing whether the Artefact was removed after 1906. This is because it is a known fact that it was either removed before 1906 or removed after 1906 – there are no other possibilities. Thus in principle the likelihood of the competing pre-1906 and post-1906 removal hypotheses have an impact on each other.

238    The extent of that mutual effect is itself impacted by the possibility of other removal hypotheses not canvassed by the parties in their evidence. For example, anything is possible particularly over the long periods of time involved in this case. Thus, one may countenance the possibility that the Artefact was removed by a local villager in the 18th century who found it whilst digging a well and given to a travelling priest who took it with him back to the Old World, before it was brought to Buenos Aires as part of the exodus of German officials to South America after the Second World War. One may also consider it possible that the Artefact was removed in 1938 by a group of Bolivian teenagers on a school camping trip. However, neither party traversed the terrain of possibilities of this kind. Instead the Court was presented with the various (and conflicting) views of three archaeologists expert in their field as to how the removal had occurred. Whilst I accept these other theories are possible the fact that none of the experts thought them worth mentioning means that in the context of a civil trial I am not disposed to give them much weight in the fact finding process. Thus, it continues to be the case that the likelihood of removal before 1906 is strongly inversely correlated to the likelihood of the post-1906 removal hypotheses. The strength of the inverse correlation is tempered by the fact that anything is possible but, as I have just explained, given the manner in which the trial was conducted I do not think that this tempering effect is at all strong.

239    A forensic artefact of this conclusion should also be noted. If the Commonwealth’s evidence in chief were considered entirely in isolation then one possibility might be that I would conclude that the post-1906 removal hypothesis was not established on the balance of probabilities. For example, one might arrive at the view that it was quite possible that the Artefact had been removed in the fashion described by Dr Vranich or looted in the manner advanced by Dr Yates. But one might still not be affirmatively satisfied that this is what occurred.

240    However, the decision of the Applicant to enter the debate and to seek to explore the possibility of removal before 1906 alters this calculus for, as I have explained, the likelihood of removal before and after 1906 are related in the fashion I have described.

(a)    Transfer by the Tiwanaku to Tiwanaku sites in the Moquegua Valley in Peru?

241    The cross-examination of Dr Vranich and Dr Yates established the following matters. First, there were exchanges of goods and people between Tiwanaku and the sites in the Moquegua Valley during the Tiwanaku period: T164.12. Dr Yates accepted at T166.31 that there was trade between these sites as well as movement between them which may have been occasioned by a desire for a ‘seasonal change of scene’, which I took to mean the movement of the Tiwanaku to a warmer climate during the winter.

242    There is no doubt that there are Tiwanaku sites in the Moquegua Valley and that these sites have been extensively excavated. These sites were not connected to the Lake Titicaca basin (where Tiwanaku is situated) by a formal system of roads. I am prepared to accept the evidence of Dr Young-Sánchez and Dr Vranich to the effect that such exchanges likely took place by means of llama caravans. But Dr Vranich thought that it would take several days for such a caravan to travel from the Lake Titicaca basin to the Moquegua Valley and he was of the opinion that the objects which had been traded were smaller, weighed less and did not involve the level of craftsmanship exhibited in the Artefact.

243    Secondly, the evidence does not permit of any more than speculation about the relationship between the sites at the Moquegua Valley and the city of Tiwanaku. Dr Vranich gave evidence that the question is the subject of a hypothesis amongst archaeologists that the two sites might have been connected in wide family or kinship groups. And, of course, I have already referred to the evidence of Dr Young-Sánchez that the nature of the relationship between Tiwanaku and the sites distant from Tiwanaku remains the subject of debate.

244    Thirdly, Dr Vranich gave evidence that no basalt object has ever been found at a Tiwanaku site outside of Tiwanaku (with the single exception of an object dragged to Lukurmata from Tiwanaku). He also said that goods like the Artefact had not been found at the sites in the Moquegua Valley. This is important given his evidence about the extensive nature of the excavations at these sites. This may be contrasted with Dr Young-Sánchez’s evidence about the less complete documentation of the much larger site at Tiwanaku. However, Dr Young-Sánchez was less certain than Dr Vranich about whether it was possible that stone objects were made away from Tiwanaku. She was asked to comment on his evidence and said this at T121.16-20:

DR YOUNG-SÁNCHEZ: Well, I wouldn’t say that we know that it did not occur elsewhere. The place that we have – there is clear archaeological evidence that it did occur is Tiwanaku. I don’t know that you could extrapolate from that that it never occurred, could never have occurred elsewhere. There’s, you know, I don’t think enough excavation has been done to sort of rule that out as a possibility.

245    Dr Vranich was then asked for his response at T121.22-26:

MR LANCASTER: Do you accept that, Dr Vranich?

DR VRANICH: I will stand by the – the – by my declaration that the type of precise stonework of planar surfaces, right angles, incisions, carving ..... internal angles are only found at Tiwanaku.

246    Dr Young-Sánchez’s evidence was not that stonework was carried on outside of Tiwanaku; it was that the current state of excavation of Tiwanaku sites was not sufficiently advanced to rule out the possibility. The contest here is between Dr Vranich’s evidence that basalt objects have not been found outside Tiwanaku except at Lukurmata and Dr Young-Sánchez’s evidence that the extent of excavations of Tiwanaku sites is not sufficiently well-advanced to allow one to say definitively that stonework was not carried out at these other sites.

247    Dr Young-Sánchez was not asked to identify the sites which she did not think had been sufficiently excavated to permit the drawing of this conclusion. I have referred to Dr Young-Sánchez’s evidence that the excavation of the Tiwanaku site itself is far from complete. However, there was evidence about the extent of the excavations at the Moquegua Valley and at San Pedro de Atacama. Dr Vranich said that the excavations in the Moquegua Valley and San Pedro de Atacama ‘have been extensive and, in many ways, it has helped us more define what is Tiwanaku than excavations at Tiwanaku [itself]’: T80.17-18. And in giving his evidence that no basalt objects had been found in either place he was explicit at T82.18-20 that his view was based on the extensive nature of the excavations in those places. It was not put to Dr Vranich that the excavations in these places had not been extensive or had not been sufficiently extensive for him to be able to express that opinion.

248    In the case of the Moquegua Valley and San Pedro de Atacama I propose to accept Dr Vranich’s evidence about this over Dr Young-Sánchez’s since his evidence about the extent of excavations was more detailed.

249    Fourthly, as Dr Young-Sánchez noted, the Artefact differed from site-specific sculptures such as, perhaps, the large figural sculpture holding a kero mentioned by Dr Yates. The Artefact was hence capable of being moved, even though it was heavy. Although there was no specific evidence about this, I am prepared to infer that the Artefact is not too large to be carried on a llama. According to Dr Vranich, basalt Tiwanaku objects are rare and he put the number of such objects at around a dozen as well as one which was incorporated in architecture: T84.38-39. Dr Vranich thought that there were three examples of in-situ basalt objects: T82.14-15, 88.45-89.29. Dr Young-Sánchez also thought that there was not a ‘huge quantity of basalt objects that are out there’: T82.25-26.

250    Apart from the Artefact and Dr Vranich’s three objects found in-situ, the evidence disclosed only four other basalt objects (although I accept there are approximately a dozen such objects in total). These were: the object which turned up in Puno in 1888 (now in the Ethnological Museum of Berlin), the object referred to by Dr Vranich as having been dragged over the low hills to Lukurmata, the chachapumas instanced by Dr Yates and a second unprovenanced basalt object referred to by Dr Vranich at T89.38-90.21. There are also references to a feline figure in the Musée du Quai Branly in Paris, however, as I will explain, on the evidence before me it is unclear whether this object is basalt and whether it is provenanced or not. The feline in Paris is therefore not relevant for this part of the analysis.

251    The object at Lukurmata provides no evidence that objects like the Artefact were moved from Tiwanaku since dragging suggests an object of greater size inconsistent with the Applicant’s nominated mode of transport, llama. In any event, Lukurmata is in the next valley from Tiwanaku and within Bolivia. Dr Yates’s chachapumas were found at Tiwanaku. In relation to the object which surfaced at Puno in 1888, the Applicant put to Dr Yates that it had been removed from Bolivia at T145.32 and she agreed. There is thus no evidence that it was ever in the Moquegua Valley or that it was removed to Puno from there.

252    As to Dr Vranich’s second unprovenanced basalt object, it was identified as a Pucara-style object, rather than a Tiwanaku object, and hence can shed no light on transfers of basalt objects by the Tiwanaku. What one can say is that the number of Tiwanaku basalt objects is small, perhaps no more than a dozen, and this may be contrasted with the much larger number of other Tiwanaku objects that exist which, on the evidence, includes at least 3,644 objects in Prague from a part of Dr Casanova’s 1934 expedition. As I explain later in these reasons, there were several significant expeditions in the 19th century. It is open to infer, and I do, that the number of Tiwanaku objects in general is large being at least in the thousands and possibly much more. The dozen or so basalt objects which have been discovered must be seen in that context.

253    Fifthly, both Dr Yates and Dr Vranich accepted that it was possible that the Artefact had been transferred to the Moquegua Valley from Tiwanaku which was an appropriate concession. However, Dr Vranich did not think that such a transfer was supported by the available archaeological evidence. Dr Yates went further and said that the physical evidence in the Moquegua Valley was against the idea that the Artefact had been transferred there from Tiwanaku. Whilst she accepted that transfer was possible she did not think that it was plausible. She further accepted that a transfer as part of a seasonal movement was possible but she did not think it plausible on the ‘absolute weight of the archaeological evidence from those sites’: T166.31-32.

254    On this basis, I find that transfer of the Artefact from Tiwanaku to the sites in the Moquegua Valley was possible but, as the archaeological record is presently understood, very unlikely. The excavations at the Moquegua Valley have been extensive and no similar object has been located there. Across all of the Tiwanaku sites there is no evidence of a basalt object ever having been transferred in the fashion now suggested (apart from the object dragged to Lukurmata which I do not consider assists the Applicant’s case). It is possible that further excavations at other Tiwanaku sites may reveal that there were exchanges of basalt objects within the Tiwanaku culture. However, that seems unlikely given Dr Vranich’s evidence about the extensive nature of the excavations in the Moquegua Valley. I think it very unlikely therefore that the Artefact was transferred to the Moquegua Valley in this fashion.

255    Of course, this does not mean it is impossible. It is also not impossible that one day Hittite artefacts may be found in Canada but at the moment the hypothesis of a Hittite-Americas trade route is not consistent with the archaeological record. The same is true here. There is no evidence of the exchange of basalt goods from Tiwanaku to the Moquegua Valley.

(b)    Transfer by the Tiwanaku to Tiwanaku sites in the Atacama Desert in Chile?

256    It is not in dispute that Tiwanaku sites have been discovered in the Atacama Desert. Dr Vranich identified the primary site as San Pedro de Atacama which was an oasis town. A large number of burials have been excavated at San Pedro de Atacama and the excavations there have been extensive.

257    San Pedro de Atacama is not on the coast and is at a lower altitude than Tiwanaku. Dr Young-Sánchez pointed out that Tiwanaku was at a high altitude and that there was a long-standing tradition of persons at high altitudes travelling to lower altitudes to obtain foods or other materials. I do not accept that an oasis town in the Atacama Desert is likely to have been a place to which the Tiwanaku resorted for food. Dr Young-Sánchez thought that the Tiwanaku might also have travelled there to obtain minerals but the nature of these minerals was not explained and there is no evidence before me that the oasis village of San Pedro de Atacama was a mineral centre. Although the possibility that San Pedro de Atacama was a source of minerals was put to Dr Vranich he did not give evidence that it was: T165.16.

258    The situation with San Pedro de Atacama is therefore either the same as or even less substantial than the situation at the sites in the Moquegua Valley. I therefore find that the transfer of the Artefact to San Pedro de Atacama during the Tiwanaku period was possible but as the archaeological record is presently understood very unlikely.

(c)    Transfer by the Tiwanaku to islands in Lake Titicaca

259    The evidence during the concurrent session touched on three islands in Lake Titicaca. Dr Young-Sánchez gave evidence that there was evidence on several islands of cultures associated with the Tiwanaku. She also noted in her report that these sites have received very limited study by archaeologists to date which, as will be seen, is consistent with what the evidence in this case shows. The islands discussed in the evidence were the Island of the Sun which is in Bolivia, and the islands of Tikonata and Isla Esteves which are in the Peruvian part of the lake. Isla Esteves was only tangentially mentioned and, as a hypothesis, transfer of the Artefact to Isla Esteves is in much the same position as Tikonata and does not rise higher for the Applicant’s case than Tikonata does.

(i)    The Island of the Sun

260    The Island of the Sun is located in the Bolivian part of Lake Titicaca. Dr Vranich gave evidence that what appeared to be a Tiwanaku temple had been found on the Island of the Sun as had some Tiwanaku artefacts. The archaeologist Charles Stanish had worked on the east side of the Island of the Sun according to Dr Vranich: T97.41-42. The evidence about the Island of the Sun did not extend further than this.

261    I accept that the Tiwanaku were present on the Island of the Sun. I do not accept that it has been shown that any basalt Tiwanaku objects have been found there. On the present state of the archaeological record, the evidence does not sustain the proposition that the Artefact was transported to the island as part of an exchange of goods. The nature of the artefacts found there is unknown on the evidence and the nature of the temple is similarly obscure; in particular, there is no evidence about the nature of the stonework there (assuming the temple is stone) or whether it included any basalt. There is no evidence of any items of sculpture, keros or incensarios and none of the witnesses suggested that there were grave sites. At best all that can be said is that the Tiwanaku visited the Island of the Sun for ritual purposes and that artefacts have been found there.

262    It is possible that the Artefact was transported by the Tiwanaku to the Island of the Sun for ritual purposes. However, I do not know anything about these rituals except that they may have been associated with the production of maize. In that circumstance, whilst I accept that the hypothesis that the Artefact had been transported to the Island of the Sun is possible it strikes me as speculative on the known archaeological evidence disclosed during this hearing.

263    A further problem would remain concerning the important question of how the Artefact, if transported to the Island of the Sun, came to be in the hands of Mr Osona by the 1950s. The evidence for excavations at the Island of the Sun is limited to those carried out by Stanish. It was not suggested that Stanish had uncovered the Artefact and I do not find that he did. I will return to the evidence of looting of the site of Tiwanaku itself a little later in these reasons, but I was taken to no evidence that there had been looting on the Island of the Sun and the only evidence which would explain its removal from the Island of the Sun is Dr Yates’s evidence about the Picasso-inspired looting beginning in the late 1940s. Thus the evidence provides no foundation for a finding that the Artefact had been discovered on the Island of the Sun before 1906. In any event, even if the Artefact had been transported by the Tiwanaku to the Island of the Sun it would have remained in Bolivia and this hypothesis would have led nowhere for the Applicant.

(ii)    The island of Tikonata

264    Tikonata is located within that part of Lake Titicaca which lies within modern Peru, that is to say, on the northern side of the lake. Dr Young-Sánchez gave evidence that Stanish had written an article reporting the finding of Tiwanaku artefacts on Tikonata and on the adjacent shore. Stanish had expressed the opinion that many of the islands in Lake Titicaca were ritual centres where the Tiwanaku (and before them the Pucara) had conducted rituals relating to the cultivation of maize.

265    The evidence included a photograph of an incensario. Dr Young-Sánchez believed that the photograph had been published by Stanish and that it was from Tikonata. She thought that Stanish’s work at Tikonata had been a ‘salvage excavation or expedition’. Dr Vranich initially thought the incensario was from the northern side of the lake (which is where Tikonata is) but then became a little confused because he thought Stanish had worked at the Island of the Sun which is on the eastern side of the lake. This led him to say eventually ‘So I don’t know where this is coming from’. However, Dr Young-Sánchez reminded Dr Vranich of Stanish’s salvage excavation at Tikonata and, in particular, that Stanish had actually cited Dr Vranich in his article on this excavation. This revived Dr Vranich’s memory of Stanish’s salvage excavation and he accepted that the incensario came from Tikonata. The Applicant submitted that Dr Vranich’s initial answer had been unresponsive. I do not accept this criticism. Dr Vranich was clearly at first confused by the object and the answer he gave merely reflected this.

266    It is then necessary to take a slight detour because of a submission made by the Applicant that another aspect of Dr Vranich’s evidence about the island of Tikonata was unsatisfactory. He gave evidence at T75.7-12 that he was more familiar with the islands on the Bolivian side of the lake and that there were Tiwanaku artefacts on the Island of the Sun. Insofar as the Peruvian islands were concerned, he was aware that a hotel had been constructed on Isla Esteves in the 1970s and that this had resulted in the destruction of a Tiwanaku settlement but he had not seen any publications about this. Subsequent to this (but on the same day he gave the evidence to which I have already referred) he accepted that the incensario photographed by Stanish came from Tikonata in Peru.

267    On the next day of the concurrent session, it was put to him that it was possible that if the Artefact had been manufactured in Tiwanaku it could have made its way to one of the Peruvian islands for trade or for ceremonial purposes. The exchange went as follows:

MR LANCASTER: Assuming this object was manufactured in the Tiwanaku capital, that it was moved in ancient times to an island on Lake Titicaca that is now part of Peru for ceremonial or trade or other purposes, and subsequently made its way somehow to Argentina. That’s something that would’ve happened, is it not?

DR VRANICH: And the archaeological evidence indicates that no such objects are found on the islands or in Moquegua, and the likely roots of exchange during this period of antiquity exchange would not support that. However, the possibility that an object moving, if we consider possibility – very small possibilities, yes, it could’ve done that.

268    It was submitted that by this answer Dr Vranich was being categorical that there were no Tiwanaku artefacts like the Artefact to be found on the islands on the Peruvian side of Lake Titicaca (which would include Tikonata) and that this contradicted his evidence on the first day of the concurrent session that he was more familiar with the islands on the Bolivian side of the lake. His evidence was not that the Tiwanaku objects on the islands on the Peruvian side of the lake had not been found and, indeed, he had already accepted that Stanish’s incensario came from Tikonata on that side of the lake. The question he was asked was not about Tiwanaku objects in general but rather about Tiwanaku objects which had been subject to movement by reason of ceremonial, trade or other purposes. The answer he gave was addressed to that topic.

269    Nevertheless, the Applicant is correct that Dr Vranich’s certainty that no object of that kind had been found on the islands in Peru is in tension with his statement the previous day that he was less familiar with those islands. It might perhaps have been preferable for him to say that he was unaware of any such exchanged objects. As such, I do accept that Dr Vranich does have a tendency to overstate his certainty. However, I do not think this diminishes his evidence more generally and this tendency may be accommodated in the fact finding process simply by being aware of its existence.

270    Returning then to what the evidence shows about Tikonata, there seems little doubt therefore that an incensario made by the Tiwanaku was found there and, further, that it is likely that the Tiwanaku carried out ritual activities on the island probably associated with the cultivation of maize. An effort was then made by the Applicant to establish that the incensario recovered by Stanish was made from basalt. In my view, this effort failed. Dr Vranich denied it was basalt and said instead that it was ceramic. Dr Yates, too, thought that it was not basalt. She thought that the incensario was painted and that this would have been affixed during the firing process of ceramics. Dr Young-Sánchez expressed no view on this question and the Applicant did not attempt to adduce any other evidence which suggested that it was made from basalt. I conclude that Stanish’s incensario is ceramic and not made from basalt.