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Australian Indigenous Law Reporter |
Court and Tribunal Decisions- Australia
Federal Court of Australia (Lindgren J)
26 March 2004
Evidence — native title — admissibility of documents — records kept by now deceased missionary of births and deaths of indigenous persons — hearsay rule — exceptions to the hearsay rule — some records of events within personal knowledge of the missionary — some events within personal knowledge of missionary’s informants — whether exception to hearsay rule in s 63 of the Evidence Act 1995 (Cth) (‘the Act’) applies — whether activities of mission an ‘undertaking’ and therefore a ‘business’ — whether ‘business records’ exception to hearsay rule in s 69 of the Act applies — exception to hearsay rule as to evidence of reputation as to relationships or age under s 73 of the Act — discretion to exclude evidence under s 135 of the Act
The respondents contested the admissibility of eight pieces of evidence in a long running native title proceeding brought by representatives of the Wongatha People. The evidence was tendered by Mrs Morgan, whose parents, Rodolphe Schenk and Isobel May Schenk (both now deceased), were Christian missionaries in the Goldfields region of Western Australia. The Schenks established a mission at Mt Margaret, which contained a school, hospital and dormitaries for local Aborigines, working as missionaries until 1953.
The respondents contended that the evidence contravened the ‘hearsay’ rule (s 59(1) of the Evidence Act 1995 (Cth) (‘Evidence Act’)) which disallows evidence of previous representations to prove an ‘asserted fact’. The applicants contended that the evidence fell within the exceptions to the hearsay rule (s 63), particularly the ‘business records’ exception (s 69) which admits evidence of representations made in the course of business, if they were made by a person reasonably assumed to have personal knowledge of the facts, or by a person who directly or indirectly supplied knowledge to such a person. The applicants submitted that in relation to some of the evidence, the rules of evidence should not apply pursuant to s 82 of the Native Title Act 1993 (Cth).
1. Documents or records created as part of a private undertaking are not ‘public documents’ for the purposes of the Evidence Act. This is so even where the private undertaking involves activities like those fulfilled by government or public authorities (such as school or hospital activities), or where the records contain information which is commonly found in public documents [27]–[28].
2. Records kept as part of undertakings which are not necessarily carried out for the purposes of profit may still be admissible under s 69 of the Act. Evidence is admissible under s 69 where it forms part of the records of the undertakings and is a representation made either by a person who might reasonably have had personal knowledge of the facts, or on the basis of information provided by such a person [30]–[31].
3. The s 64(2) exception to the hearsay rule allows for evidence to be admitted where a maker of a statement is available to give evidence about an asserted fact, but it would ‘cause undue expense or undue delay or would not be reasonably practicable’ to call the maker to give evidence. Whilst complete failure to identify the maker of the representation means that s 64(2) can not apply, a general level of identification can invoke s 64(2). In this instance, whilst Mrs Schenk could not identify her informants by name, her testimony establishes that they were Aboriginal people who from time to time resided at or visited the Mission [41]–[43]. Daniel v Western Australia (2000) 173 ALR 51 distinguished.
4. For the Court to dispense with the rules of evidence under s 82(1) of the Native Title Act 1993, it is not a sufficient reason that the application of the rules of evidence render certain items of evidence admissible; there must be some factor calling for the making of such an order [82]. Daniel v Western Australia (2000) 178 ALR 542 followed.
5. Lack of an opportunity to cross-examine a witness on a document will not necessarily mean that the danger of prejudice will outweigh the probative value of the evidence for the purposes of s 135 of the Act [76], [111]–[113].