...Hearsay Evidence...
In essence, the rule against hearsay is designed to exclude evidence which is based on what another person has told the witness rather than the witness' own direct observation or knowledge. The exclusion usually comes into effect when the 'hearsay' evidence is presented to establish the truth of what was told to the witness.
For example, witness X can give evidence that he saw Jo steal a car. But if X tries to persuade the court that Jo did steal the car, and his evidence in support is merely that Mandy told him that Jo stole the car, then Jo's lawyers will object to that evidence on the basis that it is hearsay. Jo's lawyers would argue that the statement is only admissible in so far as it goes to prove that Mandy had this conversation with X, but that it cannot be used to prove the truth of what X was told by Mandy. In other words, the rule against hearsay operates to prevent that evidence from being used to prove that John actually did steal the car.
This rule poses great difficulties for Eddie Mabo who, like other Meriam witnesses, were seeking to make out claims based on traditional customs, the understanding of which had been handed down in oral form from one generation to the next. But statements such as 'my grandfather, who is now dead, told me that this was the boundary of our land' caused over 600 objections and led to extensive legal argument. Given the volume of objections, Justice Moynihan decided that the only practical course was to note each objection and then to receive the evidence subject to that objection. He later wrote that '[h]ad I ruled on each objection at the time it was taken the proceedings would, I think, never have ended.' As it was, the plaintiffs representatives initially sought two weeks and then a month (twenty sitting days) for the hearing of the remitter. It turned out that the hearing extended for sixty-seven actual sitting days (producing 3489 pages of transcript), not including the huge amount of preparation time engaged in by all parties.
There is no doubt that one of the primary reasons for the vastly extended duration of the hearing was the legal argument surrounding the admissibility of the Meriam witnesses called by the plaintiffs. The following exchange provides an example:
His Honour: Is your next step to call Mr Mabo?
Mr Castan: Yes, it is.
His Honour: I will reserve my ruling on the objection that is taken, and I think we are at the stage where Mr Mabo is going to tell us something that his grandfather said.
Mr CASTAN continued opening the case for the plaintiffs
HIS HONOUR: Is your next step to call Mr Mabo?
MR CASTAN: Yes, it is.
HIS HONOUR: I will take the morning break and I will follow yesterday's course. I really don't know that I will see through an afternoon.
The Court adjourned at 11 7 a.m.
The Court resumed at 11.27 a.m.
EDDIE KOIKI MABO recalled and further examined:
HIS HONOUR: Just so that we have it on the record that Mr Mabo last gave evidence concluding at page 139 of the transcript.
BY MR CASTAN: You gave evidence some days ago which included evidence identifying pictures and some description. Could I take you back to the first time you went to the area at Las, which you have described? Can you remember the very first occasion when you went to the area at Las?-- Yes. My first recollection, as far as I could remember, was - I think it was during the war years when my father was serving in the Torres Strait Light Infantry Battalion. I accompanied my grandfather and my sister in a dinghy called 'Outlaw', and we went around to the eastern shore from Sebeg, which is situated around north-west coast, and we went around to the eastern coast. We half - between my sister and myself we half rowed and half sort of dragged the boat along the - and we went around to a Place called Ulag.
The place called Ulag, is that, perhaps, halfway around, or could you describe about how far that is around from Sebeg, where the village was, around to Las? -- I would say approximately about a kilometre, I would say, from Ulag to Las. It was halfway - midway between - on our journey we stopped and we picked up some things.
When you say on your journey you stopped, can you describe what actually happened? Were you in deep water or shallow water? -- It was in shallow water. We were on a we pulled the boat up on the beach but my grandfather and myself didn't get out of the boat, I was still sitting with him in the boat, and my sister got out and then when she came back he then pointed to a windbreak. There was a post on the end. He told me that ----
Just stop, for a moment------
HIS HONOUR: Yes, Mr Byrne?
MR BYRNE: I object to the evidence, Your honour. There are two distinct aspects of it: the first is the assertion that the gentleman to whom reference is being made as Mr Mabo's grandfather, I object to that on the basis that it is hearsay, and as to the conversation which is about to be related, I object to that on the grounds that so far as one can tell from what has been indicated by the material intended to be adduced from Mr Mabo, the evidence must also be hearsay.
HIS HONOUR: Mr Castan?
MR CASTAN: The witness is going to recount what the grandfather said, Your Honour, and that is sought to be tendered upon the various bases that have already been the subject of submission, Your Honour, that is to say this was the experience of a young person learning from his now deceased ancestor, and we can establish that; his grandfather has died , and we can establish that for the purposes of our present discussion, I presume on the basis that we will establish that and we will then be seeking to lead it on the basis of the various aspects that have been already debated. I do not know if Your Honour wants me now to go back over those?
HIS HONOUR: No - which of them?
MR CASTAN: Well, there is the matter of reputation Your Honour, which I outlined.
HIS HONOUR: Reputation in respect of the matter of general public rights.
MR CASTAN: There is the question of customary rights and the leading of evidence as to existence of a custom.
HIS HONOUR: It is proof of custom, you say?
MR CASTAN: Yes, it is proof of custom and included in that is the statement, because we are going back to the witness's earlier memories and that includes the events and descriptions of what was actually being said and done. Thirdly it is the fact that it was said by the grandfather's, itself, evidence of the existence of a custom. In other words, part of the custom is the fact of telling small children what their interests are and what their lines of succession are, where the boundaries are, how they have come to be within the family.
Even if the evidence was rejected as proof of the truth of the content of what was said by the grandfather, the fact that the grandfather said those matters is itself evidence from which in due course having heard a great deal of such evidence we would be entitled to submlt their exists the custom of conveying to children and grandchildren that kind of information. That is an essential part of the very system and the very customs that we are here dealing with, this system of succession and this system of recording what we might call oral succession, oral recording of title and ownership apart from questions of succession.
It is admissible on those bases and, of course, on the basis that I have submitted to Your Honour as traditional evidence which I outlined among the various matters that we canvassed last week, Your Honour.
Those are the bases So far as his evidence that the person was his grandfather, in our respectful submission, a witness who gives evidence that the person he travelled with was his grandfather is not giving hearsay at all, simply giving evidence of the fact that that is the person who he knew of at time and related to as his grandfather.
If there be an issue as to whether or not that person was his grandfather, that is a matter for separate canvassing and debate, and evidence in any event would be admissible because it raises the issue of pedigree.
If what my learned friend complains of is the witness's recounting, in effect, that his grandfather told him that he was his grandfather and that, therefore, it is hearsay, then it is admissible as -----
HIS HONOUR: No. I thought the objection was put on the basis that the only way in which this witness could know that this man was his grandfather would be on the basis of what other people told him. That is the usual sort of basis that objection is taken.
MR CASTAN: That is inherent in every person saying, 'This man is my father and this woman is my mother.'
HIS HONOUR: But if you look at some of the books, of course, they will tell you that evidence is inadmissible but is commonly received because people do not take the objection.
MR. CASTAN: In our respectful submission, insofar as it is hearsay in that sense, it is in this case where there is an issue of pedigree raised, as we understand it from the objection, it is admissible in any event for the reasons we have outlined under the exception dealing with matters of pedigree.
HIS HONOUR: Look, Mr. Byrne, what I will do is I will receive the evidence, reserve the question of whether it is admissible as to the truth of matters stated. The truth of the matter stated being whether the man is his grandfather or whatever is to be stated about, I take it, to be about the boundaries or the ownership of the other bit of land and I will reserve that question for the time being partly because we are not going to finish this year anyway and partly because I am not, to be frank, confident of the shape of the case enough yet to be confident that I ought to rule definitively one way or another on that point, on that objection.
Unless you have something else you wanted to say, that is the course I propose to follow
MR BYRNE: Your Honour, there were some general submissions I would like to make in relation to that course. You will recall that a few days ago our learned friend Mr Castan foreshadowed that he would be asking Your Honour to reserve the questions of admissibility whenever they arose and I think he foreshadowed that he proposed they be reserved until the conclusion of the case.
I indicated at that stage that there may be some potential for prejudice so far as we are concerned in that course, and I maintain the position that that is still so.
We suspect, Your Honour, at this end of the Bar table that it the rulings with respect to admissibility are made before Mr Mabo's examination in chief concludes, then it is unlikely - I cannot say anything more than that at this stage - it is unlikely that we will sustain any prejudice that could not be attended to by, for example, an adjournment to give us time to investigate things that are admitted, but we are apprehensive if the rulings are delayed beyond the conclusion of his examination in chief we will at that stage confront the prospect of prejudice, I do not really wish to say anything more about it at this stage.
HIS HONOUR: No. Indeed what was in the back of my mind was to look at the position again at the conclusion of his evidence-in-chief and see where we stood with these reserved questions and then form a concluded view as to whether or not there should be argument and ruled on before we proceeded any further that is certainly what was in the back of my mind when I said for the time being or whatever.
In the meantime, I think you ought to take your objection in respect of each piece of evidence as it comes forward and I would, in the way that I just did, ask Mr Castan to identify the specific exceptions that are relied on in relation to the specific evidence and then we can look at it from that context.
MR BYRNE: Your Honour, I should say that in almost all cases there will be a general objection on the grounds of relevance. Now, I know that there are inherent difficulties in ruling on that, while it is for the High Court to decide the questions of law, but if I might, if my leaned friend has no objection to this course, record now that on any occasion on which there is an objection, whether it be an objection on the ground of relevance and if I may take the shortcut of making that claim at this stage and my learned friend agrees, perhaps the trial can go forward on that basis.
HR CASTAN: I am content to do that.
HIS HONOUR: Is that relevance from the point of view that we touched on the other day of individual title?
MR BYRNE: Yes. More broadly than that, however. It relates ultimately to the questions of law that have to be resolved.
HIS HONOUR: I understand. That seems a way to do it does it not, Mr Castan?
MR CASTAN: As Your Honour pleases. I will proceed on the basis that the matters subject to objections as Your Honour indicated-----
HIS HONOUR: I will reserve my ruling on the objection that is taken, and I think we are at the stage where Mr Mabo is going to tell us something that his grandfather said.
Nonie Sharp makes the following observation regarding the response of the Murray Island witnesses to the objections made by Queensland to the evidence of Eddie Mabo:
'In the opening days of the court hearing in October 1986, it became apparent to Eddie Mabo and to counsel that the process of giving evidence to the court on what he believed to be his rights to land, how they had become known to him, their grounding in a system of Meriam law and custom and their relation to Meriam social organisation and system of meanings, would not be a straightforward one at all. Plaintiff James Rice and three witnesses who remained for more than a week outside the court waiting to be called, eventually learned about the tactics of the defence, which they saw as consistent with their experience of Queensland as their ruler and policeman. They could hardly be aware of what most non-Islander citizens of Queensland were also unaware: the armoury of technicalities born of a system alien to their own which Queensland had at its disposal to defeat their action. Nevertheless they were surprised and shocked to be told that the evidence they intended to give on the oral transmission of title was arguably inadmissible according to historically established rules of the court. ...
Moreover, the feeling was also growing among counsel for the Murray Islanders that the frequent interruption of witnesses, their subjection to behaviour which they may construe as ridicule, had become a fixed feature of the hearing. There was no certainty that the Murray Islanders would win their case, and the process they would be 'put through' would be unpleasant and probably belittling. A view had developed by at least one member of counsel that, while Mabo could handle the interruptions which sought to cast doubts on his credibility as a witness, other "more traditional" Islanders living on Murray Island may not be equipped to do so.'
For example, witness X can give evidence that he saw Jo steal a car. But if X tries to persuade the court that Jo did steal the car, and his evidence in support is merely that Mandy told him that Jo stole the car, then Jo's lawyers will object to that evidence on the basis that it is hearsay. Jo's lawyers would argue that the statement is only admissible in so far as it goes to prove that Mandy had this conversation with X, but that it cannot be used to prove the truth of what X was told by Mandy. In other words, the rule against hearsay operates to prevent that evidence from being used to prove that John actually did steal the car.
This rule poses great difficulties for Eddie Mabo who, like other Meriam witnesses, were seeking to make out claims based on traditional customs, the understanding of which had been handed down in oral form from one generation to the next. But statements such as 'my grandfather, who is now dead, told me that this was the boundary of our land' caused over 600 objections and led to extensive legal argument. Given the volume of objections, Justice Moynihan decided that the only practical course was to note each objection and then to receive the evidence subject to that objection. He later wrote that '[h]ad I ruled on each objection at the time it was taken the proceedings would, I think, never have ended.' As it was, the plaintiffs representatives initially sought two weeks and then a month (twenty sitting days) for the hearing of the remitter. It turned out that the hearing extended for sixty-seven actual sitting days (producing 3489 pages of transcript), not including the huge amount of preparation time engaged in by all parties.
There is no doubt that one of the primary reasons for the vastly extended duration of the hearing was the legal argument surrounding the admissibility of the Meriam witnesses called by the plaintiffs. The following exchange provides an example:
His Honour: Is your next step to call Mr Mabo?
Mr Castan: Yes, it is.
His Honour: I will reserve my ruling on the objection that is taken, and I think we are at the stage where Mr Mabo is going to tell us something that his grandfather said.
Mr CASTAN continued opening the case for the plaintiffs
HIS HONOUR: Is your next step to call Mr Mabo?
MR CASTAN: Yes, it is.
HIS HONOUR: I will take the morning break and I will follow yesterday's course. I really don't know that I will see through an afternoon.
The Court adjourned at 11 7 a.m.
The Court resumed at 11.27 a.m.
EDDIE KOIKI MABO recalled and further examined:
HIS HONOUR: Just so that we have it on the record that Mr Mabo last gave evidence concluding at page 139 of the transcript.
BY MR CASTAN: You gave evidence some days ago which included evidence identifying pictures and some description. Could I take you back to the first time you went to the area at Las, which you have described? Can you remember the very first occasion when you went to the area at Las?-- Yes. My first recollection, as far as I could remember, was - I think it was during the war years when my father was serving in the Torres Strait Light Infantry Battalion. I accompanied my grandfather and my sister in a dinghy called 'Outlaw', and we went around to the eastern shore from Sebeg, which is situated around north-west coast, and we went around to the eastern coast. We half - between my sister and myself we half rowed and half sort of dragged the boat along the - and we went around to a Place called Ulag.
The place called Ulag, is that, perhaps, halfway around, or could you describe about how far that is around from Sebeg, where the village was, around to Las? -- I would say approximately about a kilometre, I would say, from Ulag to Las. It was halfway - midway between - on our journey we stopped and we picked up some things.
When you say on your journey you stopped, can you describe what actually happened? Were you in deep water or shallow water? -- It was in shallow water. We were on a we pulled the boat up on the beach but my grandfather and myself didn't get out of the boat, I was still sitting with him in the boat, and my sister got out and then when she came back he then pointed to a windbreak. There was a post on the end. He told me that ----
Just stop, for a moment------
HIS HONOUR: Yes, Mr Byrne?
MR BYRNE: I object to the evidence, Your honour. There are two distinct aspects of it: the first is the assertion that the gentleman to whom reference is being made as Mr Mabo's grandfather, I object to that on the basis that it is hearsay, and as to the conversation which is about to be related, I object to that on the grounds that so far as one can tell from what has been indicated by the material intended to be adduced from Mr Mabo, the evidence must also be hearsay.
HIS HONOUR: Mr Castan?
MR CASTAN: The witness is going to recount what the grandfather said, Your Honour, and that is sought to be tendered upon the various bases that have already been the subject of submission, Your Honour, that is to say this was the experience of a young person learning from his now deceased ancestor, and we can establish that; his grandfather has died , and we can establish that for the purposes of our present discussion, I presume on the basis that we will establish that and we will then be seeking to lead it on the basis of the various aspects that have been already debated. I do not know if Your Honour wants me now to go back over those?
HIS HONOUR: No - which of them?
MR CASTAN: Well, there is the matter of reputation Your Honour, which I outlined.
HIS HONOUR: Reputation in respect of the matter of general public rights.
MR CASTAN: There is the question of customary rights and the leading of evidence as to existence of a custom.
HIS HONOUR: It is proof of custom, you say?
MR CASTAN: Yes, it is proof of custom and included in that is the statement, because we are going back to the witness's earlier memories and that includes the events and descriptions of what was actually being said and done. Thirdly it is the fact that it was said by the grandfather's, itself, evidence of the existence of a custom. In other words, part of the custom is the fact of telling small children what their interests are and what their lines of succession are, where the boundaries are, how they have come to be within the family.
Even if the evidence was rejected as proof of the truth of the content of what was said by the grandfather, the fact that the grandfather said those matters is itself evidence from which in due course having heard a great deal of such evidence we would be entitled to submlt their exists the custom of conveying to children and grandchildren that kind of information. That is an essential part of the very system and the very customs that we are here dealing with, this system of succession and this system of recording what we might call oral succession, oral recording of title and ownership apart from questions of succession.
It is admissible on those bases and, of course, on the basis that I have submitted to Your Honour as traditional evidence which I outlined among the various matters that we canvassed last week, Your Honour.
Those are the bases So far as his evidence that the person was his grandfather, in our respectful submission, a witness who gives evidence that the person he travelled with was his grandfather is not giving hearsay at all, simply giving evidence of the fact that that is the person who he knew of at time and related to as his grandfather.
If there be an issue as to whether or not that person was his grandfather, that is a matter for separate canvassing and debate, and evidence in any event would be admissible because it raises the issue of pedigree.
If what my learned friend complains of is the witness's recounting, in effect, that his grandfather told him that he was his grandfather and that, therefore, it is hearsay, then it is admissible as -----
HIS HONOUR: No. I thought the objection was put on the basis that the only way in which this witness could know that this man was his grandfather would be on the basis of what other people told him. That is the usual sort of basis that objection is taken.
MR CASTAN: That is inherent in every person saying, 'This man is my father and this woman is my mother.'
HIS HONOUR: But if you look at some of the books, of course, they will tell you that evidence is inadmissible but is commonly received because people do not take the objection.
MR. CASTAN: In our respectful submission, insofar as it is hearsay in that sense, it is in this case where there is an issue of pedigree raised, as we understand it from the objection, it is admissible in any event for the reasons we have outlined under the exception dealing with matters of pedigree.
HIS HONOUR: Look, Mr. Byrne, what I will do is I will receive the evidence, reserve the question of whether it is admissible as to the truth of matters stated. The truth of the matter stated being whether the man is his grandfather or whatever is to be stated about, I take it, to be about the boundaries or the ownership of the other bit of land and I will reserve that question for the time being partly because we are not going to finish this year anyway and partly because I am not, to be frank, confident of the shape of the case enough yet to be confident that I ought to rule definitively one way or another on that point, on that objection.
Unless you have something else you wanted to say, that is the course I propose to follow
MR BYRNE: Your Honour, there were some general submissions I would like to make in relation to that course. You will recall that a few days ago our learned friend Mr Castan foreshadowed that he would be asking Your Honour to reserve the questions of admissibility whenever they arose and I think he foreshadowed that he proposed they be reserved until the conclusion of the case.
I indicated at that stage that there may be some potential for prejudice so far as we are concerned in that course, and I maintain the position that that is still so.
We suspect, Your Honour, at this end of the Bar table that it the rulings with respect to admissibility are made before Mr Mabo's examination in chief concludes, then it is unlikely - I cannot say anything more than that at this stage - it is unlikely that we will sustain any prejudice that could not be attended to by, for example, an adjournment to give us time to investigate things that are admitted, but we are apprehensive if the rulings are delayed beyond the conclusion of his examination in chief we will at that stage confront the prospect of prejudice, I do not really wish to say anything more about it at this stage.
HIS HONOUR: No. Indeed what was in the back of my mind was to look at the position again at the conclusion of his evidence-in-chief and see where we stood with these reserved questions and then form a concluded view as to whether or not there should be argument and ruled on before we proceeded any further that is certainly what was in the back of my mind when I said for the time being or whatever.
In the meantime, I think you ought to take your objection in respect of each piece of evidence as it comes forward and I would, in the way that I just did, ask Mr Castan to identify the specific exceptions that are relied on in relation to the specific evidence and then we can look at it from that context.
MR BYRNE: Your Honour, I should say that in almost all cases there will be a general objection on the grounds of relevance. Now, I know that there are inherent difficulties in ruling on that, while it is for the High Court to decide the questions of law, but if I might, if my leaned friend has no objection to this course, record now that on any occasion on which there is an objection, whether it be an objection on the ground of relevance and if I may take the shortcut of making that claim at this stage and my learned friend agrees, perhaps the trial can go forward on that basis.
HR CASTAN: I am content to do that.
HIS HONOUR: Is that relevance from the point of view that we touched on the other day of individual title?
MR BYRNE: Yes. More broadly than that, however. It relates ultimately to the questions of law that have to be resolved.
HIS HONOUR: I understand. That seems a way to do it does it not, Mr Castan?
MR CASTAN: As Your Honour pleases. I will proceed on the basis that the matters subject to objections as Your Honour indicated-----
HIS HONOUR: I will reserve my ruling on the objection that is taken, and I think we are at the stage where Mr Mabo is going to tell us something that his grandfather said.
Nonie Sharp makes the following observation regarding the response of the Murray Island witnesses to the objections made by Queensland to the evidence of Eddie Mabo:
'In the opening days of the court hearing in October 1986, it became apparent to Eddie Mabo and to counsel that the process of giving evidence to the court on what he believed to be his rights to land, how they had become known to him, their grounding in a system of Meriam law and custom and their relation to Meriam social organisation and system of meanings, would not be a straightforward one at all. Plaintiff James Rice and three witnesses who remained for more than a week outside the court waiting to be called, eventually learned about the tactics of the defence, which they saw as consistent with their experience of Queensland as their ruler and policeman. They could hardly be aware of what most non-Islander citizens of Queensland were also unaware: the armoury of technicalities born of a system alien to their own which Queensland had at its disposal to defeat their action. Nevertheless they were surprised and shocked to be told that the evidence they intended to give on the oral transmission of title was arguably inadmissible according to historically established rules of the court. ...
Moreover, the feeling was also growing among counsel for the Murray Islanders that the frequent interruption of witnesses, their subjection to behaviour which they may construe as ridicule, had become a fixed feature of the hearing. There was no certainty that the Murray Islanders would win their case, and the process they would be 'put through' would be unpleasant and probably belittling. A view had developed by at least one member of counsel that, while Mabo could handle the interruptions which sought to cast doubts on his credibility as a witness, other "more traditional" Islanders living on Murray Island may not be equipped to do so.'
Keywords: Castan, Ron, evidence, hearsay, Mabo Case, Mabo, Edward Koiki, Moynihan, Justice Martin, No Ordinary Judgement, oral evidence, oral tradition, Queensland, Rice, James, witnesses, 1986
Mabo v Queensland and the Commonwealth, Queensland Supreme Court, Transcript pp 191 - 195. Sharp, Nonie 1996, 'No Ordinary Judgement', Aboriginal Studies Press, pp 37, 42.
Author: Kenna, Jonathan
Author: Kenna, Jonathan