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Court and Tribunal Decisions - Australia
Federal Court (Lindgren J)
23 July 2002
Practise and procedure — an affidavit sworn by two people — method of testifying — witnesses giving oral testimony jointly — Native Title Act (1993) (Cth) s 82 — Evidence Act (1995) (Cth) s 21 — Federal Court Rules O 78 r 34
On behalf of the Maduwongga people, Mrs Nudding and Ms Strickland applied for native title determination in relation to certain lands.
They brought before the court a motion seeking leave to give oral testimony jointly, relying upon O 78 r 34 of the Federal Court Rules. Mrs Nudding and Ms Strickland wanted to make oral statements together because they believed that there were a number of matters upon which they could give the most clear and accurate oral evidence if they were able to sit together, confer together and each make statements, one following the other, in answer to counsel’s questions.
1. It is bad practice for an affidavit to be sworn by two people. However, if this does occur, the proper analysis is that each deponent is severally swearing as to the truth of the content of the affidavit. If each deponent cannot be seen to be affirming the truth of the content of the affidavit, then the affidavit is not admissible evidence: [12].
2. Section 82 of the Native Title Act (1993) (Cth) allows a court, during proceedings, to take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders. However, the rules of evidence still apply: [18].
3. According to s 21(1) of the Evidence Act (1995) (Cth), without a prior oath or affirmation, a person’s testimonial statement is not the probative evidence of a witness in court: [19].
4. Order 78 r 34 of the Federal Court Rules provides that a court may, if it is in the interests of justice to do so, either receive into evidence statements from a group of witnesses or accept a statement from one witness after that witness has consulted with other persons: [21].
5. It was not in the interests of justice to accept a joint statement from Mrs Nudding and Ms Strickland as proposed because a court must be able to understand the extent of each witness’s own knowledge and recollection in the usual way, without the contamination of consultation: [23].
6. If it were in the interests of justice to allow such evidence in relation to Mrs Nudding and Ms Strickland then O 78 r 34 of the Federal Court Rules gives power to do so even though to do so would depart from the evidentiary regime that was adhered to when the earlier witnesses gave their statements: [24], [25].
7. The effect of O 78 r 34 of the Federal Court Rules is to require that, even in the case of the reception into evidence of statements from a group of witnesses, the statements will be identifiable as those of respective individual members of the group who testify. Thus, even in the case of a group of witnesses, the statement of each member of the group is identified and attributed to that witness, even though he/she has been permitted first to consult with other members of the group: [26].
...
12. I have occasionally encountered affidavits sworn by two people. But even in the case of that bad practice, the proper analysis is that each deponent is severally swearing or affirming as to the truth of the content of the affidavit. If this were not so, that is, if each deponent could not be seen to have pledged his or her oath or affirmation to the truth of the content of the affidavit, that document would not be the vehicle of admissible evidence (see [19] and [26] below).
13. The motion was supported by an affidavit of Ronald William Bower of Corsers, the solicitors for Ms Strickland and Mrs Nudding. Annexed to his affidavit was a copy of a statement of their evidence. The document is divided into three columns, the first being a statement of evidence proposed to be given by Ms Strickland alone, the second being a statement of evidence proposed to be given by Ms Strickland and Mrs Nudding ‘jointly’, and the third being a statement of evidence proposed to be given by Mrs Nudding alone. The paragraphs in the three columns were organised according to an integrated chronological sequence, so that all the respective paragraphs in the joint column are to be read into the respective statements of each individual at the appropriate chronological position.
14. Clearly, what was intended in relation to the ‘joint’ column was that each witness would give evidence to the effect of that column. The document could just as well have been separated into two statements, with all the paragraphs of the ‘joint’ column interspersed throughout.
15. According to para 4 of Mr Bower's affidavit, Mr Bower is informed by Ms Strickland and Mrs Nudding and believes that the portion of the document which represents the evidence to given jointly:
... are matters upon which they each believe that they can give the most clear and accurate oral evidence if they are able to sit together, confer together and each make statements, one following the other, in answer to counsel's questions.
According to para 5 of his affidavit, Mr Bower is informed by Ms Strickland and Mrs Nudding and believes that:
... Mrs Nudding in particular expects to have difficulty, and possibly to be unable to give the best oral testimony about the matters covered by the outline of the proposed joint evidence unless she can sit with her sister Ms Strickland and ask for her assistance and reassurance from time to time.
16. The first observation to be made about the affidavit evidence to which I have referred is that similar statements to those contained in paras 4 and 5 of Mr Bower's affidavit are often applicable where two or more witnesses have knowledge touching the same subject matter. Husbands and wives, the occupants of a motor vehicle involved in a collision, co-workers, and other instances in which there are multiple witnesses to the same event or series of events come to mind.
17. In these circumstances it would be surprising if anything in the legislation to which I am about to refer empowered me to allow witnesses to testify in a special manner for no more reason than those mentioned.
18. Section 82 of the Native Title Act 1993 (Cth) (‘the Act’) provides as follows:
‘82 (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.’
The form of s 82 of the Act was different prior to 1 October 1998. In its earlier form, the section required the Court to take into account cultural and customary concerns, and the rules of evidence did not apply.
19. Subsection 21(1) of the Evidence Act 1995 (Cth) (‘the Evidence Act‘) provides as follows: ‘A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.’ Subject to the presently irrelevant exception allowed in subs 21(2), without a prior oath or affirmation, a person's testimonial statement is not the probative evidence of a witness in this Court.
20. Order 78 of the Rules deals with ‘Native Title Proceedings’. Subrule 4(1) provides as follows:
At any time in a proceeding, the Court may give the directions and make the orders it considers appropriate to take account of the cultural or customary concerns of a party to the proceeding or another person.
This provision reflects subs 82(2) of the Act set out above.
21. Order 78 r 34 of the Rules, the provision under which the motion is purportedly brought, provides as follows:
(1) The Court may, if it considers that in all the circumstances it is in the interests of justice to do so, receive into evidence statements from a group of witnesses, or a statement from a witness after that witness has consulted with other persons.
(2) If a statement is made by a witness after consultation with other persons, the identity of the persons may, at the direction of the Court, be recorded in the transcript.’
I discuss O 78 r 34 of the Rules below.
22. Counsel does not seek to support the motion on the basis of O 78 r 4 of the Rules, but does so on the basis of O 78 r 34, submitting that in all the circumstances it is in the interests of justice, because of the matters stated in Mr Bower's affidavit, that the orders sought be made.
23. Shortly, I do not think it is in the interests of justice to make either order sought because I think it is in the interests of justice that the Court be able to understand the extent of each witness's own knowledge and recollection in the usual way, without the contamination of consultation. For this reason the motion should be dismissed.
24. It was submitted that I should not make orders allowing a departure from the régime described earlier because this would cause an injustice to the parties whose witnesses have already testified in accordance with that procedure. It has been submitted in reply that those parties could have moved for such orders in respect of particular witnesses called by them, and that their omission to do so should not now tell against Ms Strickland and Mrs Nudding. It has been said in response that Ms Strickland and Mrs Nuddin should have brought the present motion earlier when the régime for witness statements was being debated and resolved.
25. I do not rely on the consideration mentioned. It is mere speculation that a departure from the ordinary régime might have been relevant to any earlier witnesses. If I were convinced that it was in the interests of justice to permit such a departure in the case of Ms Strickland and Mrs Nudding, I would do so.
26. I have already stated why the motion should be dismissed but add the following observations. Order 78 subr 34(1) of the Rules contemplates the reception into evidence of ‘statements’ (in the plural) from a group of witnesses, or a statement (in the singular) from a witness after that witness has consulted with other persons. In either case, the statements or statement must be sworn or affirmed: cf subs 21(1) of the Evidence Act set out earlier. The provision does not allow for the reception into evidence of a statement (in the singular) from a group. The provision has the effect of requiring that, even in the case of the reception into evidence of statements from a group of witnesses, the statements will be identifiable as those of respective individual members of the group who testify on their oath or affirmation. The purpose of the subrule is to allow consultation. Accordingly, even in the case of a ‘group of witnesses’, the statement of each member of the group who is to testify as a witness, that is, under oath or on affirmation, is identified and attributed to that witness, even though he or she has been permitted first to consult with another member or other members of the group.
27. What I have said should not be thought to reduce the utility of O 78 subr 34(1) of the Rules. In the first place, consistently with what I have said, in an appropriate case, the Court might permit witnesses to stand or sit as a group while testifying. Secondly, the Court might permit those members of a group who are to testify all to be sworn at the outset and counsel for the party who calls them to question them, switching from one to another, rather than questioning one witness to conclusion before questioning the next one (cf s 26(a) of the Evidence Act). I cannot, however, conceive of circumstances in which the Court would require the cross-examiner to do likewise: the cross-examiner should be allowed to question each witness to conclusion in the usual way, or, apparently, to do as the examiner-in-chief has done, at the cross-examiner's option (cf subs 29(1) of the Evidence Act). Thirdly, where the Court allows consultation, the person consulted is not, by reason of having been consulted, a witness and is therefore not required to be sworn.
28. I see no inconsistency between what I have said above and the following observations recently made by the Chief Justice in relation to O 78 r 34 of the Rules:
‘The rules of the Federal Court provide that group evidence may be admitted in native title claims. This is unique to such claims. [The reference is to O 78 r 34 of the Rules.] Generally, the rules of evidence allow for evidence to be taken only from individuals, although some commentators have noted that the practice of submitting written evidence by affidavit may well involve contributions by more than one person. In native title claims, however, oral evidence given by a number of witnesses at once, or by a witness in consultation with other persons, may be admitted, and the names of people consulted during the giving of the evidence may, at the direction of the court, be recorded in the transcript. This rule was developed by the court in recognition of the fact that within many Aboriginal communities not every person is able or willing to speak about their country, and that to do so without authority from others may be very wrong. The practice was developed in hearings under the Land Rights Act, and is a recognition that the traditional expectations of the Australian legal system about the giving of evidence cannot be assumed to be appropriate to Aboriginal evidence of traditional rights and interests in land. This represents a significant change to the assumptions about evidence that the common law-based legal system has previously made.’
(The Hon Michael Black AC, ‘Developments in Practice and Procedure in Native Title Cases’ (2002) 13 Public Law Review 1 at 7)
29. In the present hearing, I have freely permitted witnesses, particularly elderly ones, to have sitting near them another person for ‘moral support’. That will be the case with Ms Strickland and Mrs Nudding. If a time is reached where there is a particular matter in respect of which counsel for the one who is giving evidence at the time wishes to seek leave to have her consult with her sister, that application can be made and will be dealt with on its merits at that time.
30. Testimony of two or more witnesses in identical terms is always problematical. The inference will often be open that the testimony does not represent the spontaneous and unaided knowledge and recollection of each witness. Accordingly, it will be proper to reduce the weight to be accorded to the testimony of one or each of the witnesses.
31. Several respondents have indicated that they would have no objection if the parts of the ‘joint’ column in the document to be read out to the witnesses for their assent, were read out only once. The procedure by which this would be achieved poses difficulty but, no doubt, one can be devised. I would agree to the course mentioned on one condition: that counsel will not ask either witness to elaborate on any of those parts. If that condition is not acceptable, and I should say that to date counsel for the applicants has been taking advantage of the right to invite witnesses to elaborate on those parts of their statements not designated for oral testimony, I would require such parts to be read over to each witness in her turn and put to her for her assent in the usual way.
32. It may ultimately be found more satisfactory, as a practical matter, if this course is followed. It permits the testimony of each witness to be self-contained and the parts to be read at their proper place in each witness's narrative. [Counsel subsequently indicated that he would follow the course last mentioned.]
33. For the above reasons, the order of the Court is that the motion be dismissed.
Counsel for the Applicants:
Mr S Walker with Mr P Vincent
Solicitors for the Applicants:
Goldfields Land and Sea Council
Counsel for the Group 1 Respondents (State of Western Australia):
Mr V Hughston SC, Mr J Waters
Solicitors for the Group 1 Respondents:
Crown Solicitor's Office State of Western Australia
Counsel for the Group 2 Respondents (Commonwealth of Australia):
Ms R Webb
Solicitors for the Group 2 Respondents :
Australian Government Solicitor
Solicitor for the Group 3 Respondents (Local Government Interests):
Mr F Van der Kooy of Minter Ellison
Counsel for the Group 4A Respondents (Maduwongga Native Title Claimants):
Mr G McIntyre SC
Solicitors for the Group 4A Respondents:
Corsers Barristers and Solicitors
Counsel for Group 4B and 4C Respondents (Cosmo Newberry Native Title Claimant Group):
Mr D Parsons SC
Solicitors for Group 4B and 4C Respondents:
Ngaanyatjarra Land Council
The Ngalia Kutjungkatja and Ngalia
Kutjungkatja 2 Native Title Claimant Groups were not legally represented.
Counsel for the Group 5A Respondents (WMC Resources Ltd Group):
Mr G Hiley QC
Solicitors for the Group 5A Respondents:
Ms J MacPherson of WMC Resources Ltd
Solicitor for the Group 5B Respondents (Barrick Gold Corporation Group):
Mr M McKenna of Hunt & Humphrey
Counsel for the Group 6A Respondents (Pastoralist Interests):
Mr G Donaldson, Mr J Thompson
Solicitors for the Group 6A Respondents:
Blake Dawson Waldron
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