Harrington-Smith on behalf of The Wongatha People v Western Australia (No 4) [2003] FCA 17 (20 January 2003)

Last Updated: 25 March 2003

FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of The Wongatha People v State of

Western Australia (No 4) [2003] FCA 17

EVIDENCE - hearsay - old photographs - taker of photographs deceased - representations by him heard by his daughter as to taking of photographs and their subject matter - attempt to lead hearsay evidence from daughter on those matters - failure of party tendering photographs to give notice of intention to adduce such hearsay evidence - whether direction should be made that exclusion of hearsay rule still applies - exercise of discretion - whether other parties prejudiced by loss of opportunity to cross-examine other witnesses who had left the witness box.

Evidence Act 1995 (Cth) ss 59, 63, 67

Evidence Regulations (Cth) cl 4

Federal Court Rules O 33 r 16, Form 144

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS

ON BEHALF OF THE WONGATHA PEOPLE v THE STATE OF

WESTERN AUSTRALIA & ORS

WAG 6005 OF 1998

LINDGREN J

20 JANUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6005 OF 1998

BETWEEN:	RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS
JUDGE:	LINDGREN J
DATE OF ORDER:	20 JANUARY 2003
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1. Subsection 63(2)(a) of the Evidence Act 1995 (Cth) apply in respect of the testimony given by Margaret Morgan on 28 November 2002 of oral representations made by her late father, Rod Schenk, as to the circumstances of his taking of photographs 4A, 4B, 4C and 4D (Eras 1 and 2) in Exhibit A79 and as to the content of those four photographs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6005 OF 1998

BETWEEN:	RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS

JUDGE:	LINDGREN J
DATE:	20 JANUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No 2)

(Ruling on admissibility of hearsay testimony about photographs)

INTRODUCTION

1 On Thursday 28 November 2002, which was day 65 of the hearing, and the final day set aside for the applicants' evidence directed to establishing the existence of native title (connection), the applicants tendered a folder of photographs with captions. Objection was taken to some of the captions. After some captions were amended, agreement was reached as to all captions except the following:

"ERA 1 and ERA 2 1921 - 1928

4A.

Men ready for corroboree to which Rod Schenk was invited when living in Laverton 1921. [set of four photographs on page 3]

4B.

Corroboree to which Rod Schenk was invited when living in Laverton, 18.9.20. Three moves in the corroboree which women are allowed to witness [my auntie's notes]

4C.

Second move in the corroboree to which Rod Schenk was invited when living in Laverton. A corroboree which women were allowed to see.

4D.

Third move in the corroboree to which Rod Schenk was invited when living in Laverton. A corroboree which women were allowed to see."

The folder of photographs and associated captions (incorporating amendments) was admitted into evidence as Exhibit A79, subject to my ruling as to the captions set out above relating to photographs 4A, 4B, 4C and 4D in Era 1 and Era 2. Those four photographs appeared to be of painted young Aboriginal men dancing or posing. Without captions or oral testimony demonstrating the relevance of the photographs, I would be required to ignore them even though they form part of the Exhibit, because they would not be shown to be relevant to any issue I am required to decide.

2 Rod Schenk, referred to in the captions, was a Christian missionary who, in 1921, established a mission at Mt Margaret, not far from Laverton, under the auspices of the United Aborigines Mission. Mr Schenk and his wife, Mysie Schenk, continued to work as missionaries there until 1953 when they retired to Esperance. Their daughter, Margaret Morgan, wrote a book called Mt Margaret: A Drop in a Bucket, about her parents' work at the Mt Margaret Mission.

3 The applicants called Mrs Morgan as a witness and she was in the witness box when counsel for the applicants tendered the folder of photographs and captions. Counsel sought, over objection, to lead hearsay testimony from Mrs Morgan as to the circumstances in which the four photographs were taken and as to their subject matter. I infer that Mrs Morgan is the author of the four captions. Photograph 4C appears at page 19 of her book.

4 These reasons relate to the admissibility of the captions and of Mrs Morgan's hearsay evidence. The applicants' case is that Mr Schenk took the photographs made representations about them which his daughter heard and of which she is able to give evidence.

LEGISLATION

5 The hearsay rule is found in subs 59(1) of the Evidence Act 1995 (Cth) ("the Act"). That subsection is as follows:

"(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation."

Subsection 63(2)(a) of the Act provides, relevantly, that the hearsay rule does not apply to evidence of a previous representation that is given by a person who heard the representation being made. Clause 4 of Part 2 of the Act's Dictionary provides that for the purposes of the Act, a person is taken not to be available to give evidence about a fact if, relevantly, the person is dead. Rod Schenk is dead.

6 Subsection 67(1) of the Act provides that the exception to the hearsay rule found in subs 63(2) does not apply to evidence adduced by a party unless that party has given "reasonable notice in writing to each other party of the party's intention to adduce the evidence." Subsection 67(2) provides that a notice under subs 67(1) is to be given in accordance with any regulations or rules of court made for the purposes of s 67. Subsection 67(3) provides, relevantly, that the notice must state the particular provisions on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence. In the present case, therefore, a notice would have been required to identify subs 63(2) as the provision on which the applicants intended to rely.

7 Subsection 67(4) provides that if notice has not been given, the Court may, on the application of the party, direct that, relevantly, subs 63(2) is to apply despite the failure to give notice. Subsection 67(5) provides that the Court's direction is subject to such conditions (if any) as the Court thinks fit, and, in particular, that the direction may provide that, in relation to specified evidence, the subsection concerned applies with such modifications as the Court specifies.

8 Clause 5 of the Evidence Regulations (Cth) is made for the purpose of s 67 of the Act and requires a notice of a previous representation to state certain matters, including the substance of the evidence intended to be adduced and particulars of the representation made.

9 Order 33 subr 16(3) of the Federal Court Rules requires that a notice of intention to adduce evidence of a previous representation be in accordance with Form 144 and may have attached to it an affidavit that sets out evidence of the previous representation. However, subr 16(4) provides that compliance may be dispensed with in whole or in part if the Court is satisfied, having regard to all the circumstances, including any affidavit that has been served, that the purpose of the requirement has been satisfied. Form 144 provides for a statement of matters which would be required by subclause (5) of the Evidence Regulations and, depending on the nature of the case, of other matters as relevant.

10 Section 192 of the Act provides that in deciding whether to give a direction, the Court must take into account:

"(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the ... direction is sought; and

(d) the nature of the proceedings; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence."

11 Subsection 82(1) of the Native Title Act 1993 (Cth) provides as follows:

"(1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

(2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings."

It was not submitted that s 82 has any role to play in relation to the issue which I am required to decide.

EVIDENCE ON THE VOIR DIRE

12 An affidavit of Katharine Mary O'Bryan, a solicitor employed by the Goldfields Land and Sea Council Aboriginal Corporation ("GLSC"), which represents the applicants, shows that on 28 February 2002 a subpoena was issued to an officer of the Battye Library at the State Library of Western Australia for production of:

"A collection of approximately 1,000 photographs donated or loaned by Margaret Morgan and her family in about 2001, together with any written material identifying or commenting on the same."

13 The hearing of the evidence in the proceeding was due to commence on 4 March 2002. The subpoena was served on the Battye Library on 1 March 2002 and was returnable before the Registrar at 4.00 pm later the same day. Prior to the subpoena being called on, the Library faxed a letter to the Court advising, in summary, that while the Library was ready and willing to make the collection of photographs available for viewing by all parties, it was "unable" to produce the documents to the Court for reasons which were set out in some detail in the letter. The reasons had to do with the fragility of the photographs and conservation work which was being carried out on them and the cataloguing of them. Counsel for the applicants subsequently attended at the Battye Library on three occasions, inspected the photographs, and discussed with senior officers of the Library what, if anything, could be done to allow the GLSC to have possession of the photographs or copies of them. Counsel was required to view some of the photographs in a protected environment with the assistance of the Library's Senior Conservator, Preservation Services. Staff of the Library informed counsel that a process of digitising all of the "Schenk collection" had been arranged, but due to limited resources it was very difficult to predict when that process might be completed. In fact the GLSC received the compact discs containing digitised images of the photographs in the Schenk collection only on 15 November 2002, while the third tranche of hearing dates was in progress, and only thirteen days before the photographs were tendered on 28 November 2002.

THE HEARSAY EVIDENCE GIVEN BY MRS MORGAN

14 Mrs Morgan's testimony was to the effect that she heard her late father, Rod Schenk, talk about the photographs from a time when she was about ten or eleven years old and into her teen years, and that she heard him say:

* he took the four photographs in or about 1921 in Laverton and had been invited by Aboriginal people out into the bush to see the ceremony in question; and

* the Aboriginal men in the photographs were engaged in a "corroboree".

15 Mrs Morgan referred to the following passage at pp 19-20 of Mt Margaret: A Drop in a Bucket, which appears below photograph 4C on page 19 in that book:

"I witnessed a corroboree no woman dare look at or know about lest she `tumble down' (die).

The music started - everything is acted to music and clatter of weapons - and all the older women moved away, but the boys and girls who might risk a look were covered with blankets, with an old warrior at each end as sentinel.

Then from behind the bushes in front of the four big fires came the performers, with large headgear and with bodies painted and feathered. To `tar and feather' is to make elegant. In their girdles were fixed the devil-devil sticks, and the dancing resembled a `cakewalk'. At a certain rumble stage in the music they did the corroboree quivers: an art whereby they cause their flesh to shiver like a jelly. Only a few in NSW retain this art, but several here are expert at it. After four changes in the dancing they finished as they started, and I felt that I had had something better than a ten-shilling theatre seat."

16 Mrs Morgan said that in writing her book she copied this passage from one of Mr Schenk's prayer letters.

REASONING AND CONCLUSION

17 It is submitted on behalf of the Group 5B respondents that they are prejudiced by the failure of the applicants to give notice of their intention to adduce the hearsay evidence a reasonable time prior to the commencement of the hearing on 4 March 2002. In oral submissions, their counsel said he would have put questions to all the witnesses associated with Laverton as to the last time corroborees were, to their knowledge, held there. Counsel said he would have asked whether such witnesses knew the persons in the photographs. He referred, in particular, to the Sullivans, Mr Winter and Ms Laidlaw, as examples of witnesses associated with Laverton whom he would have cross-examined in this way.

18 The letter dated 1 March 2002 faxed to the Court by the Library states that the Schenk collection of photographs comprises approximately 1000 "heritage images dating from the 1920's to the 1970's". It was possible for the legal representatives for the applicants to inspect these photographs in order to identify any to be tendered in evidence, but to do so only at the Battye Library. Mrs Morgan agreed in evidence that she would have been able to inspect the photographs virtually from the time they were delivered to the Library and I infer that the legal representatives of the applicants could have done so from that time also. Mrs Morgan said they were delivered to the Library about 18 months to two years prior to her giving evidence. Thus her evidence is to the effect that they were photographs delivered to the Library between November 2000 and May 2001.

19 The applicants rely upon their List of Documents dated 30 November 2001 which referred to:

"Selected historical and contemporary photographs, maps, video tapes, files and audio tapes (various)."

This was inadequate, however, to bring it home to the respondents that the applicants intended to tender the four photographs in question. In any event, the hearsay evidence objected to comprises the previous representations made by the late Mr Schenk and heard by his daughter, Mrs Morgan. The List of Documents gave no notice of the applicants' intention to adduce that evidence.

20 In his written submissions, Counsel for the Group 5B respondents states that he

"may have put questions to a number of witnesses connected to Laverton as to those photographs with a view to negating any inference that any applicants knew or might have known about law business being conducted at Laverton in the 1920's or 1930's. Obviously, it is now impossible to say what questions would have been directed at whom given that now all the evidence has been heard. However, had the Counsel been forewarned of the representation in question he would have prepared his cross-examination of `Laverton witnesses' differently." (my emphasis)

21 I had requested that any submission as to prejudice arising from the lost opportunity to cross-examination identify the witnesses who would or might have been cross-examined and any relevant pages in the transcript of their testimony, so that I could appreciate the course which the hearing might have taken if the applicants had given notice as they were required to do. But no respondent has made written submissions descending to such detail. The prejudice which the Group 5B respondents are said to have suffered has been articulated in their written submissions only in the general manner indicated by the passage set out above.

22 I am concerned not to give any encouragement to the view that the requirement of notice need be complied with only where a failure to do so would cause specific prejudice. The giving of reasonable notice is clearly made by subs 67(1) of the Act a condition of exclusion by subs 63(2) of the hearsay rule. If reasonable notice is not given, the party seeking to rely on the hearsay evidence bears the onus of persuading the Court to exercise its discretion under subs 67(4). Nonetheless, I am persuaded that the discretion should be exercised in the applicants' favour.

23 I accept that the applicants were caused some difficulty by the fact that the photographs were held at the Battye Library, even though this difficulty was not insurmountable.

24 I am not persuaded that that the respondents are prejudiced by the applicants' failure to give the required notice. No doubt the respondents have lost an opportunity to cross-examine but whether that loss is prejudicial requires further consideration. If in cross-examination a witness conceded that he or she was not aware of corroborees taking place in the Laverton area in or about 1921, this would fall far short of detracting from the reliability of the tendered hearsay evidence of Mrs Morgan. It would have to be established that the particular witness would probably have known of any such corroboree if it took place. No attempt has been made to suggest that any particular indigenous witness who has testified would probably have been in a position to contradict evidence that a corroboree was, or corroborees were, held in or near Laverton in or about 1921.

25 At its strongest, the Group 5B respondents say, through their counsel, that he "would have" cross-examined witnesses associated with Laverton (this became "may have" in written submissions). Examples given of such witnesses were the Sullivans, Rhys Winter and Lois Laidlaw.

26 Mrs Dimple Sullivan, in her evidence-in-chief on 11 March 2002, testified that one of her first memories was staying under a blanket in a bough shed at Mt Margaret, while a men's ceremony was taking place outside. She was about two years old at the time. Mrs Sullivan also testified about camping at Red Flag, 15 km south-west of Mt Margaret, for two weeks while another ceremony was being held. She estimated that this ceremony took place in the 1930s. Furthermore, she stated that ceremonies had also happened around Laverton, and that she had been with people who went to them. None of the respondents cross-examined Mrs Sullivan on any of this testimony. Mrs Sullivan's testimony at least put the respondents on notice of the possible occurrence of ceremonies in the claim area at or near Laverton during the 1920s and she could have been cross-examined as to this issue.

27 In any case, Ms Laidlaw, Mr Winter, and the members of the Sullivan family who have given evidence in the proceeding could only have given hearsay evidence in relation to the occurrence of corroborees in the vicinity of Laverton in or about 1921, because they were all, including Mrs Dimple Sullivan, born after 1921. Mrs Sullivan, born in 1922, is the oldest of these witnesses. Therefore, none of them could have possessed direct and personal knowledge as to whether (or not) such ceremonies did occur. Apparently the most any of them could have said is that someone who was living in or about 1921 did not tell them of corroborees at or near Laverton in or about 1921, or (less likely) told them that that person had not heard of such occurrences. Such evidence could hardly have diminished the effect of the four photographs and Mrs Morgan's hearsay evidence relating to them.

28 The oral testimony of Mrs Morgan as to what she heard her late father say concerning the taking of the photographs and their subject matter should be admitted. There will be a direction under subs 67(4) of the Act accordingly.

29 The caption in the book under the copy of photograph 4C will not be admitted. It was not argued that it should be.

30 Nor do I admit the four captions set out earlier. Although their source was not stated, as indicated earlier, I infer that it was Mrs Morgan herself. Mrs Morgan's oral testimony was not to the effect of everything stated in the four captions. In the result, Mrs Morgan's oral testimony will, in effect, serve as the descriptions of the subject matter of the four photographs, 4A, 4B, 4C and 4D in Eras 1 and 2 contained in Exhibit A79.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 20 January 2003

Counsel for the Applicants: Mr S Walker

Solicitors for the Applicants: Goldfields Land and Sea Council

Counsel for the Group 1 Respondent Mr J Waters

(State of Western Australia):

Solicitors for the Group 1 Respondent Crown Solicitor's Office

(State of Western Australia):

Counsel for the Group 2 Respondent Ms R Webb

(Commonwealth of Australia):

Solicitors for the Group 2 Respondent Australian Government Solicitor

(Commonwealth of Australia):

Counsel for Group 4B and 4C Respondents Mr D Parsons SC

(Cosmo Newberry Native Title Claimant Group):

Solicitors for Group 4B and 4C Respondents Ngaanyatjarra Council Aboriginal

(Cosmo Newberry Native Title Claim Group): Corporation

Counsel for the Group 5A Respondent Mr G Hiley QC

(WMC Resources Ltd group of companies):

Solicitor for the Group 5A Respondent Ms J MacPherson of WMC

(WMC Resources Ltd group of companies): Resources Ltd

Solicitors for the Group 5B Respondent Mr M McKenna and Ms K White

(Barrick Group of companies): of Hunt & Humphry

Solicitors for the Group 5E Respondent Mr M McKenna and Ms K White

(AMEC Group of companies): of Hunt & Humphry

Solicitors for the Group 5F Respondent Mr M McKenna and Ms K White

(LionOre Group of companies): of Hunt & Humphry

Counsel for the Group 6A Respondent Mr G Donaldson

(Members of the Pastoralists' and Graziers'

Association):

Solicitors for the Group 6A Respondent Blake Dawson Waldron

(Members of the Pastoralists' and Graziers'

Association):

Date of Hearing: 28 November 2002

Date of Judgment: 20 January 2003