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EXPERT EVIDENCE
IN NATIVE TITLE CLAIMS
Overview
A number of recent decisions have discussed the
use of expert evidence in native title claims. Most recently, in
Jango v Northern Territory, over one thousand objections were
filed by the respondents in relation to the two anthropological
reports. Although this does not necessarily mean that the reports
do not comply with the rules of evidence, Justice Sackville noted
that each of the reports ‘has been prepared with scant regard for
the requirements of the Evidence Act 1995 (Cth)’ at [8]. Counsel
for the applicants conceded that the majority of the objections
were well founded and most of the reports were, as a result,
inadmissible. The decision of Justice Lindgren in
Harrington-Smith v State of Western Australia also dealt with
similar issues.
Anthropological reports submitted as expert
evidence in native title claims will have to comply with the
Evidence Act 1995 (Cth) (‘the Evidence Act’).
Legislation
Evidence Act 1995 (Cth)
The Evidence Act 1995 (Cth)
('the Evidence Act'),
in particular section 56 regarding relevance, ss 59 and 60 regarding
the hearsay rule, ss 76(1), 79, 80 regarding admissibility of expert
evidence, and ss 135, 136 regarding the Court’s discretion to
exclude evidence.
Section 56(1) of the Evidence Act states that, except as
otherwise provided, evidence that is relevant in a proceeding is
admissible in a proceeding. Evidence that is not relevant is
inadmissible (s 56(2)). The test of relevance is whether the
evidence, if accepted, could rationally affect the assessment of the
probability of the existence of a fact in issue in the proceedings
(s 55(1)).
Section 59 of the Evidence Act details the hearsay rule
which provides that evidence of a previous representation made by a
person is not admissible to prove the existence of a fact that the
person intended to assert by the representation.
Section 60 of the Evidence Act provides an exception to
the hearsay rule, stating that the hearsay rule does not apply to
evidence of a previous representation that is admitted because it is
relevant for a purpose other than proof of the fact intended to be
asserted by the representation.
Section 76(1) of the Evidence Act is ‘the opinion rule’
which provides that evidence of an opinion is not admissible to
prove the existence of a fact about the existence of which the
opinion was expressed.
Section 79 of the Evidence Act relates to evidence based
on specialised knowledge and provides that if a person has
specialised knowledge based on the person's training, study or
experience, the opinion rule does not apply to evidence of an
opinion of that person that is wholly or substantially based on that
knowledge.
Section 80 of the Evidence Act abolishes the ultimate
issue and common knowledge rules. Evidence of an opinion is not
inadmissible only because it is about (a) a fact in issue or an
ultimate issue or (b) a matter of common knowledge.
Section 135 of the Evidence Act gives the Court a general
discretion to exclude evidence. It provides that the Court may
refuse to admit evidence if its probative value is substantially
outweighed by the danger that the evidence might (a) be unfairly
prejudicial (b) be misleading or confusing or (c) cause or result in
undue waste of time.
Section 136 of the Evidence Act provides that the Court
may limit the use to be made of evidence if there is a danger that a
particular use of evidence might (a) be unfairly prejudicial to a
party; or (b) be misleading or confusing.
Native Title Act 1993 (Cth)
The Native Title Act 1993 (Cth)
(‘the Native Title Act’) was amended by the
Native Title Amendment Act 1998 (Cth). Previously, s 82(3)
of the Native Title Act
provided that the Federal Court was not bound by technicalities,
legal forms, or rules of evidence.
Section 82(1) of the Native Title Act now provides that the Federal Court is bound by
the rules of evidence, except to the extent that the Court otherwise
orders.
Section 82(2) of the Native Title Act provides that in conducting its proceedings, the
Court may take account of the cultural and customary concerns of
Aboriginal and Torres Strait Islander peoples but not so as to
prejudice unduly any other party to the proceedings.
Cases
Jango v Northern Territory (No 2) [2004] FCA 1004 (3 August
2004)
The ‘Yulara Anthropology Report’ and a
second report by a former Community/Park Liaison Officer at
Uluru-Kata Tjuta National Park were submitted as expert evidence in
a compensation claim pursuant to ss 50(2) and 61(1) of the
Native Title Act 1993 (Cth).
The respondents filed approximately
1,100 separate objections to passages in the two reports. Counsel
for the applicants accepted that most of these objections were well
founded and these paragraphs were, as a result, inadmissible.
Justice Sackville summarised the
problems regarding The Yulara Anthropology Report [at 11] -
“[It] often does not clearly expose the
reasoning leading to the opinions arrived at by the authors. Nor
does it distinguish between the facts upon which opinions are
presumably based and the opinions themselves. Indeed, it is often
difficult to discern whether the authors are advancing factual
propositions, assign the existence of particular facts, or
expressing their own opinions. Certainly the basis on which the
authors have reached particular conclusions is often either unstated
or unclear.”
Justice Sackville accepted that the
vagueness of the initial instructions given to the authors, the
significant time between the initial and supplementary instructions
(four years), as well as the fact that the authors were not informed
of the requirements under the Evidence Act all contributed to the
high number of objections.
The Court adjourned (9 August 2004) to
give the applicants more time to
overcome the objections to
the expert reports.
Commonwealth v
Yarmirr [2001] HCA 56 (11 October 2001)
On appeal in the High Court, Gleeson
CJ, Gaudron, Gummow and Hayne JJ noted at 62 [84] that an
anthropological report had been received in evidence in that case
without proof and without objection
“Despite it being a document which was
in part intended as evidence of historical or other facts, in part
intended as evidence of expert opinions the authors held on certain
subjects, and in part a document advocating the claimants’ case.”
Harrington-Smith
on behalf of the Wongatha People v Western Australia (No 7)
[2003] FCA 893
In this native title application, 30
reports were submitted in 35 volumes to which there were 1426
objections.
Lindren J set out the relevant
general principles relating to expert evidence, noting first that
the Court had not been asked to exercise the discretion under s
82(1) of the Native Title Act, and therefore the objections were to
be determined according to the rules of evidence.
The general principles of the rules
of evidence, as set out by Lindren J [at 7-15]: Reports or parts of
reports that are relevant are admissible, except as otherwise
provided by the Evidence Act s 56(1). Reports or parts of
reports that are not relevant are not admissible under s 56(2) of
the Evidence Act. The evidence that is relevant is evidence that, if
it were accepted, could rationally affect (directly or indirectly)
the assessment of the probability of the existence of a fact in
issue in the proceeding: Evidence Act s 55(1). Whether
evidence, including expert opinion evidence, is relevant depends on
application of the test specified in subs 55(1) (see [9] above) - an
objective test grounded in human experience, on the application of
which minds may differ, but which does not allow for the exercise of
discretion. Section 56(2), which provides that evidence which is not
relevant in the proceeding is not admissible, is mandatory. Where
irrelevant evidence is admitted (where no objection is raised, or if
raised, not pressed), the judge will not give the evidence any
weight because it is not evidence that ‘could rationally affect…the
[judge’s] assessment of the probability of the existence of a fact
in issue in the proceeding.’ However, Lindren J pointed out that
none of the objections to the reports are based on relevance.
Rather, it is more of a matter for the judge to give the reports and
the individual parts of them the appropriate weight in all the
circumstances. Note also that such weight as seems appropriate in
all the circumstances includes the possibility of no weight at all.
The general rule is that ‘evidence
of an opinion is not admissible to prove the existence of a fact
about the existence of which the opinion was expressed’ (s 76(1)
Evidence Act). An exception to this ‘opinion rule’ is provided
by s 79 of the Evidence Act which states that ‘if a person
has specialised knowledge based on the person’s training, study or
experience, the opinion rule does not apply to evidence of an
opinion of that person that is wholly or substantially based on that
knowledge.’ In Harrington-Smith many of the objections contended
that particular expressions of opinion lay outside the established
‘specialised knowledge based on the [author’s] training, study and
experience’.
In response to the protest of
Counsel that in order to ensure the requirements of admissibility
are met, lawyers would have to become involved in the writing of
expert witness reports, Lindren J commented [at 19]:
‘Lawyers should be involved
in the writing of reports by experts: not, of course, in relation to
the substance of the reports (in particular, in arriving at the
opinions to be expressed); but in relation to their form, in order
to ensure that the legal tests of admissibility are addressed. In
the same vein, it is not the law that admissibility is attracted by
nothing more than the writing of a report in accordance with the
conventions of an expert’s particular field of scholarship. So long
as the Court, in hearing and determining applications such as the
present one, is bound by the rules of evidence, as the Parliament
has stipulated in subs 82(1) of the Native Title Amendment Act,
the requirements of s 79 (and s 56 as to relevance) of the Evidence
Act are determinative in relation to the admissibility of expert
opinion evidence.’ (Emphasis in original)
Lindren J pointed out that in order
to establish the admissibility of expert opinion in accordance with
the Evidence Act, it must be shown [at 20]:
(a) That the opinion is relevant
(including that the field of knowledge is one in which expert
opinion can properly be called (see Cross on Evidence (Australian
Edition at [29050]) – ss 55, 56 Evidence Act;
(b) That the person put forward as
an expert possesses specialised knowledge in that field – s 79
Evidence Act;
(c) That the specialised
knowledge is based on the person’s training, study or experience – s
79 Evidence Act; and
(d) That the particular opinion
tendered is based on the specialised knowledge – s79 Evidence Act.
Daniel v Western
Australia [2001] FCA 223 (14 March 2001)
Nicholson J regarding the admissibility
of hearsay [at paras 7-9] –
(7) Hearsay evidence from the
[expert’s] opinion is inferred, will (subject to the application of
ss 135 and 136) qualify for admission pursuant to s 56 as relevant
to the purpose of the basis upon which the expert holds the opinion
so that its weight can be assessed. It could then be used for a
hearsay purpose as a consequence of the application of s 60.
(8) Admission of hearsay evidence with
that consequence under s 60 leads inevitably to the needs for the
Court to consider whether that admission should be limited under s
136 to the state purpose of testing the knowledge on which the
opinion is based.
(9) Admission with the consequences
flowing from s 60 would not occur if the Court considered admission
should be precluded in exercise of its discretion under s 135. It
would seem that hearsay evidence comprising a statement as to the
existence of native title made to the expert by a party not called
(and being on an issue central to the case) would qualify for
exclusion or admission limited to testing the opinion in the manner
required by s 78.’
Section 135 provides that ‘the Court may refuse to admit evidence if
its probative value is substantially outweighed by the danger that
the evidence might:
(a) be unfairly prejudicial to a party;
or
(b) be misleading or confusing;
or
(c) cause or result in undue
waste of time.’
Neowarra v Western
Australia [2003] FCA 1399 (8 December 2003)
In Neowarra, an Anthropological
and Linguistic Report (the Joint Report), consisting of 140 pages of
text and 76 pages of notes, references, tables, attachments etc. was
submitted.
A high number of objections were made
to the joint anthropological report on the basis that it was unclear
whether various statements in the report were of opinion,
assumption, hypothesis, fact or hearsay. After questioning of the
anthropologists in an attempt to ‘cure’ some of the objections that
were asserted, the number of objections to the joint report
decreased (in general) but a large number remained, including the
State’s blanket objection.
The ‘opinion rule’ now contained in s.76 of the Evidence Act is discussed at paragraph 15.
The ‘basis rule’ is discussed at
paragraph 16. Justice Sundberg notes that although the Evidence Act
does not allow the basis rule as an exception to the opinion rule,
an expert should nevertheless differentiate between the fact on
which the opinion in based and the opinion in question, so that it
is possible for the court to determine whether the opinion is wholly
or substantially based on the expert’s specialised knowledge, which
in turn is based on training, study or experience [at para 23].
With regard to hearsay by experts,
discussed at paragraph 28 and onwards, Sundberg J notes that s.59(1)
of the Evidence Act provides that ‘evidence of a previous
representation made by a person is not admissible to prove the
existence of a fact that the person intended to assert by the
representation.’ The expression ‘previous representation’ is
defined as ‘a representation made otherwise than in the course of
giving evidence in the proceeding in which evidence of the
representation is sought to be adduced.’
Section
60 of the Evidence Act provides that ‘the hearsay rule does not
apply to evidence of a previous representation that is admitted
because it is relevant for a purpose other than proof of the fact
intended to be asserted by the representation.’
Justice Sundberg referred to Nicholson
J’s re-statement of the case law in Daniel v Western Australia
and the three propositions he extracted (paras 7- 9, set out above
in Daniel).
Justice
Sundberg concluded [at para 39] that:
1. The opinion provisions of the
Evidence Act do not incorporate a basis rule requiring the facts
upon which an opinion or conclusion is based to be established by
admissible evidence;
2. The weight to be accorded an opinion
or conclusion that is founded on a fact that is not established by
admissible evidence may thereby be reduced;
3. While the Evidence Act does not
contain a basis rule in the sense described above, the fact that
hearsay material may lie behind facts ascribed or assumed does not
spell inadmissibility; rather it goes to the weight to be accorded
the expert's opinion or conclusion;
4. An expert's opinion that is based on
hearsay is admissible under s.60 in proof of the fact intended to be
asserted, though the weight to be accorded the opinion may be
reduced by the hearsay quality of the material, and the hearsay
material or the opinion may be excluded under s.135 or s.136; and
5.
Remote hearsay is not admissible under s 60 in proof of the fact
intended to be asserted.
Interpretations
Requirements of
Section 79 [1]
Admissibility requirements of
s.79 –
the question is not just whether the evidence of the opinion is
admissible but whether that opinion is admissible in proof of the
fact that the opinion is adduced to prove. A court will have in
mind – would evidence of this opinion assist the jury to determine
there exists (or not) the fact which the opinion holder says exists
(or not)?
The general approach to
s.79 is
outlined in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR
705 at 743-744 per Heydon JA. Heydon’s summary may be taken as a
framework for an analysis of
s.79.
1. Knowledge in a field of
‘specialised knowledge’
The witness must demonstrate that
she/he has acquired specialised knowledge in a field through
specified training, study or experience.
2. The specialised knowledge as
a reliable basis for the opinion.
Assessment as to whether the theory,
or any technique used to employ the theory, is reliable in the sense
that its application to the assumed facts can produce an opinion of
some value to the jury in coming to a view as to whether the fact in
issue exists.
Although this isn’t a requirement
specifically in
s.79, it derives from consideration of the threshold
test for the admissibility of any piece of evidence that is stated
in ss. 55 and
56.
3. Specialised knowledge ‘based
on the person’s training, study or experience’.
The question is whether, accepting
that W has some specialised knowledge, that knowledge is based on
the person’s training, study or experience. The more critical
question to be asked is whether the particular opinion expressed
(and bearing in mind that more than one opinion may be expressed) is
‘wholly or substantially based on that knowledge’.
4. An opinion based on
specialised knowledge.
It is sufficient that the
specialised knowledge is at least substantially the basis for the
expert opinion. The witness may have regard to matters that are
within the knowledge of ordinary persons in formulating his or her
opinion.
Comment
James F Weiner, Johnny Jango
& ors v Northern Territory of Australia & ors. An Anthropologist’s
Comment.
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