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

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

The Court held that while the applicants failed to give proper notice under s 67(1) of the Evidence Act 1995 (Cth), a direction would be made under s 67(4) allowing s 63(2)(a) to apply, as the respondents did not demonstrate specific prejudice from the lost opportunity to cross-examine, and any lost opportunity would not have materially affected the probative value of Mrs Morgan’s evidence given the lack of direct witnesses to the events of 1921. Therefore, Mrs Morgan’s oral hearsay testimony about what her father said regarding the photographs is admitted. Captions authored by Mrs Morgan or from her book, however, are not admitted as evidence of the representations.

Parties
Applicants: Ron Harrington-Smith, Leo Thomas, Cyril Barnes & Others on behalf of the Wongatha People; Respondents: The State of Western Australia & Others
Jurisdiction
Australia
Judgment Date
20 January 2003
Procedural Posture
Native Title Determination (interlocutory) / Ruling on Admissibility of Hearsay Evidence
Outcome
Application granted in part; hearsay evidence of Mrs Morgan admitted; related captions not admitted.
Legal Topics
Hearsay Rule, Admissibility of Evidence, Exceptions to Hearsay, Notice Requirements Under Evidence Act, Exercise of Judicial Discretion
Evidence Law Native Title Hearsay Rule Admissibility of Evidence Exceptions to Hearsay Notice Requirements Under Evidence Act Exercise of Judicial Discretion

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Parties

Ron Harrington-Smith, Leo Thomas, Cyril Barnes & Others on behalf of the Wongatha People

Applicants

The State of Western Australia & Others

Respondents

Procedural Posture

Native Title Determination (interlocutory) / Ruling on Admissibility of Hearsay Evidence

Legal Issues

  1. 1 Whether Mrs Morgan's hearsay evidence regarding representations made by her deceased father about photographs is admissible under s 63(2)(a) of the Evidence Act 1995 (Cth) despite non-compliance with the notice requirements in s 67.

Ratio Decidendi

The Court held that while the applicants failed to give proper notice under s 67(1) of the Evidence Act 1995 (Cth), a direction would be made under s 67(4) allowing s 63(2)(a) to apply, as the respondents did not demonstrate specific prejudice from the lost opportunity to cross-examine, and any lost opportunity would not have materially affected the probative value of Mrs Morgan’s evidence given the lack of direct witnesses to the events of 1921. Therefore, Mrs Morgan’s oral hearsay testimony about what her father said regarding the photographs is admitted. Captions authored by Mrs Morgan or from her book, however, are not admitted as evidence of the representations.

Court Disposition

Application granted in part; hearsay evidence of Mrs Morgan admitted; related captions not admitted.

Orders

  • Subsection 63(2)(a) of the Evidence Act 1995 (Cth) applies to the testimony of Margaret Morgan as to oral representations made to her by her late father about the photographs and their content.