...Justice Moynihan's approach to the hearsay question...
Ron Castan QC did go on to address Justice Moynihan at length regarding various exceptions to the hearsay rule which, it was submitted, would permit the reception of the disputed evidence. In the end, the applicability of these exceptions remained an open question, as the following extract from the transcript of the hearing on the 23/2/87 makes apparent. (Issued subject to correction upon revision.)
IN THE SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION Writ No. 1594 of 1986
BEFORE MR. JUSTICE MOYNIHAN
BRISBANE, 23 FEBRUARY 1987
(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)
BETWEEN:
EDDIE MABO, CELUIA MAPO SALEE, SAM PASSI, DAVID PASSI and JAMES RICE
(who bring this action on their own behalf and on behalf of the members of their respective family groups) Plaintiffs
- and -
STATE OF QUEENSLAND and
THE COMMONWEALTH OF AUSTRALIA Defendants
Mr. A.R. Castan, Q.C., with him Mr. B.A. Keon-Cohen and Mrs. B. Hocking (instructed by Messrs. G. McIntyre & Co.) for the plaintiffs. Mr. J.H. Byrne, Q.C., with him Mrs. M. White (instructed by the Crown Solicitor), for the State of Queensland.
FIFTEENTH DAY The Court resumed at 10.1 a.m.
MR. CASTAN: Our submission is that no rulings on any question of admissibility of evidence------
HIS HONOUR: I am minded to say this, that I am happy, subject to you and Mr. Byrne - it being acceptable - to determine that question first, as it were.
MR. CASTAN: Yes.
HIS HONOUR: And, in other words, hear argument on that independently, and then I will determine that and if, as a consequence of that, the outcome of that, other questions have got to be argued, as I say, I am happy to do that. You people may prefer another course. One of the reasons I suspect that may make it a little easier is that I have got a fair idea of what the issues are. It is not as if it is proceeding in a vacuum, as it were. So you might care to bear that in mind.
MR. CASTAN: I am indebted to Your Honour for your indication. It would be our submission that Your Honour should
Turn 1 vv/JN -631-
The Court resumed at 2.29 p.m.
HIS HONOUR: The questions with which I am seized at the moment arise out of the remission to this Court for hearing and determination of all issues of fact raised by the pleadings and particulars and further particulars in an action commenced in the High Court,
There are some hundreds of pages of pleadings, particulars and further particulars giving rise to what might justifiably be described as a myriad of issues. The immediate question for determination is whether I should rule now on the objections - more than one hundred, I think - taken in the course of the hearing to date and whether I should then proceed to rule on the inevitable objections which will arise in respect of the considerable body of evidence yet to be received, or whether I should adopt some other - and, if so, what - course.
Were this the trial of an action in which I were to ultimately determine all questions of fact and more I would be very much inclined to accede to the submission that I should rule now on the objections taken and rule on objections taken, in respect of evidence yet to be tendered as and when they arose. Other considerations, however, it seems to me, intrude themselves into the exercise in which I am engaged. The ultimate determination of the proceedings is not for me, but for the High Court. I am simply engaged in finding facts which will then be remitted to that Court for it to then determine the ultimate issues in the proceedings.
That having been said, the nature of these proceedings makes it desirable that I resolve the issues of fact remitted to me as far as possible, with the consequence that when the matter comes before the High Court, that Court can finally determine the litigation without the need for further remitters or to engage in any further finding of facts. I am conscious of the fact that I must endeavour to achieve this consistently with seeking to balance what would seem to be inevitable inconvenience or difficulty to any of the parties inherent in that course against the overall objective that I have mentioned.
I come, not without reluctance, to the conclusion that I ought not to rule now so as to preclude the receipt of any material tendered in evidence when it might be open to the High Court to take a view that that evidence or that material was properly received into evidence in the resolution of the issues which I am to determine. It therefore seems to me that the appropriate course is to continue to receive such material into evidence, subject to objection, at least until such time as the parties have closed their respective cases, unless some compelling consideration enlivens the need for further consideration.
I should go on and say this: counsel for the plaintiffs urged on me a course of, in effect, refraining, as I understood it, from making any final rulings as to the admissibility of evidence at all, but rather to make alternate findings on the basis that material objected to was either admissible, on the one hand, or inadmissible on the other. I want to make it
Turn 4 vv/JN -635-
perfectly clear that, as presently inclined, I do not accept that submission. The extent, multiplicity and complexity of the issues to be determined make it at least likely that the framing of alternatives would involve so many permutations and combinations as to make that course unjustifiable if not impossible. Moreover, there are subsidiary issues such as whether, even if the evidence objected to is admissible under a particular rubric, the individual declarant is qualified to make the statement deposed to, and these issues arise as a consequence of the objection itself. Such considerations make it desirable at the very least, if not necessary, that consideration be given to determining issues of admissibility before facts are found. It may be that some appropriate procedure will have to be implemented so as to have the parties identify the alternative findings each contends for and to identify the evidence subject to objection which bears on the finding. It may not be appropriate to resolve that matter now but I think it is desirable that such considerations be at the forefront and resolved as soon as can be done.
As I say, it seems to me that I ought not now rule in such a way as to preclude the receipt of material which the High Court might ultimately regard as admissible into evidence and that some procedure may need to be implemented to accommodate the situation which is thus created.
I might say that I am the first to acknowledge the unsatisfactory features of the course I propose. They seem to me, however, to be inherent in the particular and peculiar nature of the exercise I am engaged in, taken in conjunction with the complexity of the issues that arise.
There is one other matter I want to mention. While I accept that as a general proposition the party objecting to the admissibility of evidence must make his objection as the material is tendered, I think it is desirable that in this case we seek to depart from that position. The hearing will proceed more smoothly and expeditiously if the parties can agree on a general form or forms of objection which preserves their respective rights, or perhaps if the material is received subsequent to subsequent objection at the time when ultimate rulings are considered and perhaps made in respect of the admissibility of some or all of the material.
If the parties cannot agree about a procedure which might effect that, then perhaps I will have to settle it. By the same token, if they cannot agree on some procedure to deal with the difficulties inherent in the course which I have mentioned, then perhaps I will have to become involved in that too. But again I say, with some reluctance, that it seems to me inappropriate that I make any rulings now which may preclude the receipt of material which might ultimately be viewed by the High Court as admissible into evidence and that it is inappropriate at this stage of the proceedings to take the matter much further than that.
Now, does that dispose of the outstanding question that we dealt with this morning?
2/4 vv/JN -636
perfectly clear that, as presently inclined, I do not accept that submission. The extent, multiplicity and complexity of the issues to be determined make it at least likely that the framing of alternatives would involve so many permutations and combinations as to make that course unjustifiable if not impossible. Moreover, there are subsidiary issues such as whether, even if the evidence objected to is admissible under a particular rubric, the individual declarant is qualified to make the statement deposed to, and these issues arise as a consequence of the objection itself. Such considerations make it desirable at the very least, if not necessary, that consideration be given to determining issues of admissibility before facts are found. It may be that some appropriate procedure will have to be implemented so as to have the parties identify the alternative findings each contends for and to identify the evidence subject to objection which bears on the finding. It may not be appropriate to resolve that matter now but I think it is desirable that such considerations be at the forefront and resolved as soon as can be done.
As I say, it seems to me that I ought not now rule in such a way as to preclude the receipt of material which the High Court might ultimately regard as admissible into evidence and that some procedure may need to be implemented to accommodate the situation which is thus created.
I might say that I am the first to acknowledge the unsatisfactory features of the course I propose. They seem to me, however, to be inherent in the particular and peculiar nature of the exercise I am engaged in, taken in conjunction with the complexity of the issues that arise.
There is one other matter I want to mention. While I accept that as a general proposition the party objecting to the admissibility of evidence must make his objection as the material is tendered, I think it is desirable that in this case we seek to depart from that position. The hearing will proceed more smoothly and expeditiously if the parties can agree on a general form or forms of objection which preserves their respective rights, or perhaps if the material is received subsequent to subsequent objection at the time when ultimate rulings are considered and perhaps made in respect of the admissibility of some or all of the material.
If the parties cannot agree about a procedure which might effect that, then perhaps I will have to settle it. By the same token, if they cannot agree on some procedure to deal with the difficulties inherent in the course which I have mentioned, then perhaps I will have to become involved in that too. But again I say, with some reluctance, that it seems to me inappropriate that I make any rulings now which may preclude the receipt of material which might ultimately be viewed by the High Court as admissible into evidence and that it is inappropriate at this stage of the proceedings to take the matter much further than that.
Now, does that dispose of the outstanding question that we dealt with this morning?
2/4 vv/JN -636
MR. CASTAN: I think the answer is yes, Your Honour. I express some hesitation because I think perhaps we might need to just have some opportunity between us to carefully consider the various matters Your Honour has expressed, particularly in the second half of Your Honour's views.
HIS HONOUR: Yes, I thought that.
MR. CASTAN: I think we would be grateful for the opportunity to just reconsider exactly what the implications are of the course which Your Honour has proposed.
HIS HONOUR: I think that is quite reasonable.
MR. CASTAN: I am disposed, in view of the way this has gone, to seek to defer it over to tomorrow morning. I don't want to waste time.
HIS HONOUR: Subject to what Mr. Byrne says, I think that is probably reasonable enough.
MR. CASTAN: We have to take instructions, of course, Your Honour, and it would just, I think, facilitate our position. I don't know about my learned friends, but we would be much aided by the opportunity to consider what we say should be now put to Your Honour and what might be done in the light of Your Honour's indication.
HIS HONOUR: I will hear what Mr. Byrne has to say.
MR. BYRNE: I am happy for it to be deferred until the morning, Your Honour.
HIS HONOUR: We will adjourn until 10 o'clock in the morning.
The Court adjourned at 2.40 p.m. till 10 a.m. the following day.
3/4 vv/JN -637-
In his determination of the facts, produced at the conclusion of his inquiry in 1992, Justice Moynihan did consider the objections to hearsay. He did not, however, examine and rule on each piece of disputed evidence, commenting that "[w]ere I to do so now this determination would never get to the substantive issues." Nor did he comment on the specific exceptions to the hearsay rule on which he had been addressed by Mr Castan. Rather, he admitted the evidence as proof of customary systems (for example a system of defining boundaries to land) without finding that the evidence was admissible as proof of the truth of the contents of the statements: "Given the issues in this case and the nature of the remitter I have no difficulty in receiving evidence directed to prove custom in terms relevant to the issues .... That does not however have the consequence that the plaintiffs have succeeded in proving such customs or the rights for which they contend or that any such rights should be recognised as the plaintiffs contend. The difficulty I have is rather with the effect to be given to such evidence rather than with its admissibility." (1992) 1 Queensland Reports 78 at 90.
IN THE SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION Writ No. 1594 of 1986
BEFORE MR. JUSTICE MOYNIHAN
BRISBANE, 23 FEBRUARY 1987
(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)
BETWEEN:
EDDIE MABO, CELUIA MAPO SALEE, SAM PASSI, DAVID PASSI and JAMES RICE
(who bring this action on their own behalf and on behalf of the members of their respective family groups) Plaintiffs
- and -
STATE OF QUEENSLAND and
THE COMMONWEALTH OF AUSTRALIA Defendants
Mr. A.R. Castan, Q.C., with him Mr. B.A. Keon-Cohen and Mrs. B. Hocking (instructed by Messrs. G. McIntyre & Co.) for the plaintiffs. Mr. J.H. Byrne, Q.C., with him Mrs. M. White (instructed by the Crown Solicitor), for the State of Queensland.
FIFTEENTH DAY The Court resumed at 10.1 a.m.
MR. CASTAN: Our submission is that no rulings on any question of admissibility of evidence------
HIS HONOUR: I am minded to say this, that I am happy, subject to you and Mr. Byrne - it being acceptable - to determine that question first, as it were.
MR. CASTAN: Yes.
HIS HONOUR: And, in other words, hear argument on that independently, and then I will determine that and if, as a consequence of that, the outcome of that, other questions have got to be argued, as I say, I am happy to do that. You people may prefer another course. One of the reasons I suspect that may make it a little easier is that I have got a fair idea of what the issues are. It is not as if it is proceeding in a vacuum, as it were. So you might care to bear that in mind.
MR. CASTAN: I am indebted to Your Honour for your indication. It would be our submission that Your Honour should
Turn 1 vv/JN -631-
The Court resumed at 2.29 p.m.
HIS HONOUR: The questions with which I am seized at the moment arise out of the remission to this Court for hearing and determination of all issues of fact raised by the pleadings and particulars and further particulars in an action commenced in the High Court,
There are some hundreds of pages of pleadings, particulars and further particulars giving rise to what might justifiably be described as a myriad of issues. The immediate question for determination is whether I should rule now on the objections - more than one hundred, I think - taken in the course of the hearing to date and whether I should then proceed to rule on the inevitable objections which will arise in respect of the considerable body of evidence yet to be received, or whether I should adopt some other - and, if so, what - course.
Were this the trial of an action in which I were to ultimately determine all questions of fact and more I would be very much inclined to accede to the submission that I should rule now on the objections taken and rule on objections taken, in respect of evidence yet to be tendered as and when they arose. Other considerations, however, it seems to me, intrude themselves into the exercise in which I am engaged. The ultimate determination of the proceedings is not for me, but for the High Court. I am simply engaged in finding facts which will then be remitted to that Court for it to then determine the ultimate issues in the proceedings.
That having been said, the nature of these proceedings makes it desirable that I resolve the issues of fact remitted to me as far as possible, with the consequence that when the matter comes before the High Court, that Court can finally determine the litigation without the need for further remitters or to engage in any further finding of facts. I am conscious of the fact that I must endeavour to achieve this consistently with seeking to balance what would seem to be inevitable inconvenience or difficulty to any of the parties inherent in that course against the overall objective that I have mentioned.
I come, not without reluctance, to the conclusion that I ought not to rule now so as to preclude the receipt of any material tendered in evidence when it might be open to the High Court to take a view that that evidence or that material was properly received into evidence in the resolution of the issues which I am to determine. It therefore seems to me that the appropriate course is to continue to receive such material into evidence, subject to objection, at least until such time as the parties have closed their respective cases, unless some compelling consideration enlivens the need for further consideration.
I should go on and say this: counsel for the plaintiffs urged on me a course of, in effect, refraining, as I understood it, from making any final rulings as to the admissibility of evidence at all, but rather to make alternate findings on the basis that material objected to was either admissible, on the one hand, or inadmissible on the other. I want to make it
Turn 4 vv/JN -635-
perfectly clear that, as presently inclined, I do not accept that submission. The extent, multiplicity and complexity of the issues to be determined make it at least likely that the framing of alternatives would involve so many permutations and combinations as to make that course unjustifiable if not impossible. Moreover, there are subsidiary issues such as whether, even if the evidence objected to is admissible under a particular rubric, the individual declarant is qualified to make the statement deposed to, and these issues arise as a consequence of the objection itself. Such considerations make it desirable at the very least, if not necessary, that consideration be given to determining issues of admissibility before facts are found. It may be that some appropriate procedure will have to be implemented so as to have the parties identify the alternative findings each contends for and to identify the evidence subject to objection which bears on the finding. It may not be appropriate to resolve that matter now but I think it is desirable that such considerations be at the forefront and resolved as soon as can be done.
As I say, it seems to me that I ought not now rule in such a way as to preclude the receipt of material which the High Court might ultimately regard as admissible into evidence and that some procedure may need to be implemented to accommodate the situation which is thus created.
I might say that I am the first to acknowledge the unsatisfactory features of the course I propose. They seem to me, however, to be inherent in the particular and peculiar nature of the exercise I am engaged in, taken in conjunction with the complexity of the issues that arise.
There is one other matter I want to mention. While I accept that as a general proposition the party objecting to the admissibility of evidence must make his objection as the material is tendered, I think it is desirable that in this case we seek to depart from that position. The hearing will proceed more smoothly and expeditiously if the parties can agree on a general form or forms of objection which preserves their respective rights, or perhaps if the material is received subsequent to subsequent objection at the time when ultimate rulings are considered and perhaps made in respect of the admissibility of some or all of the material.
If the parties cannot agree about a procedure which might effect that, then perhaps I will have to settle it. By the same token, if they cannot agree on some procedure to deal with the difficulties inherent in the course which I have mentioned, then perhaps I will have to become involved in that too. But again I say, with some reluctance, that it seems to me inappropriate that I make any rulings now which may preclude the receipt of material which might ultimately be viewed by the High Court as admissible into evidence and that it is inappropriate at this stage of the proceedings to take the matter much further than that.
Now, does that dispose of the outstanding question that we dealt with this morning?
2/4 vv/JN -636
perfectly clear that, as presently inclined, I do not accept that submission. The extent, multiplicity and complexity of the issues to be determined make it at least likely that the framing of alternatives would involve so many permutations and combinations as to make that course unjustifiable if not impossible. Moreover, there are subsidiary issues such as whether, even if the evidence objected to is admissible under a particular rubric, the individual declarant is qualified to make the statement deposed to, and these issues arise as a consequence of the objection itself. Such considerations make it desirable at the very least, if not necessary, that consideration be given to determining issues of admissibility before facts are found. It may be that some appropriate procedure will have to be implemented so as to have the parties identify the alternative findings each contends for and to identify the evidence subject to objection which bears on the finding. It may not be appropriate to resolve that matter now but I think it is desirable that such considerations be at the forefront and resolved as soon as can be done.
As I say, it seems to me that I ought not now rule in such a way as to preclude the receipt of material which the High Court might ultimately regard as admissible into evidence and that some procedure may need to be implemented to accommodate the situation which is thus created.
I might say that I am the first to acknowledge the unsatisfactory features of the course I propose. They seem to me, however, to be inherent in the particular and peculiar nature of the exercise I am engaged in, taken in conjunction with the complexity of the issues that arise.
There is one other matter I want to mention. While I accept that as a general proposition the party objecting to the admissibility of evidence must make his objection as the material is tendered, I think it is desirable that in this case we seek to depart from that position. The hearing will proceed more smoothly and expeditiously if the parties can agree on a general form or forms of objection which preserves their respective rights, or perhaps if the material is received subsequent to subsequent objection at the time when ultimate rulings are considered and perhaps made in respect of the admissibility of some or all of the material.
If the parties cannot agree about a procedure which might effect that, then perhaps I will have to settle it. By the same token, if they cannot agree on some procedure to deal with the difficulties inherent in the course which I have mentioned, then perhaps I will have to become involved in that too. But again I say, with some reluctance, that it seems to me inappropriate that I make any rulings now which may preclude the receipt of material which might ultimately be viewed by the High Court as admissible into evidence and that it is inappropriate at this stage of the proceedings to take the matter much further than that.
Now, does that dispose of the outstanding question that we dealt with this morning?
2/4 vv/JN -636
MR. CASTAN: I think the answer is yes, Your Honour. I express some hesitation because I think perhaps we might need to just have some opportunity between us to carefully consider the various matters Your Honour has expressed, particularly in the second half of Your Honour's views.
HIS HONOUR: Yes, I thought that.
MR. CASTAN: I think we would be grateful for the opportunity to just reconsider exactly what the implications are of the course which Your Honour has proposed.
HIS HONOUR: I think that is quite reasonable.
MR. CASTAN: I am disposed, in view of the way this has gone, to seek to defer it over to tomorrow morning. I don't want to waste time.
HIS HONOUR: Subject to what Mr. Byrne says, I think that is probably reasonable enough.
MR. CASTAN: We have to take instructions, of course, Your Honour, and it would just, I think, facilitate our position. I don't know about my learned friends, but we would be much aided by the opportunity to consider what we say should be now put to Your Honour and what might be done in the light of Your Honour's indication.
HIS HONOUR: I will hear what Mr. Byrne has to say.
MR. BYRNE: I am happy for it to be deferred until the morning, Your Honour.
HIS HONOUR: We will adjourn until 10 o'clock in the morning.
The Court adjourned at 2.40 p.m. till 10 a.m. the following day.
3/4 vv/JN -637-
In his determination of the facts, produced at the conclusion of his inquiry in 1992, Justice Moynihan did consider the objections to hearsay. He did not, however, examine and rule on each piece of disputed evidence, commenting that "[w]ere I to do so now this determination would never get to the substantive issues." Nor did he comment on the specific exceptions to the hearsay rule on which he had been addressed by Mr Castan. Rather, he admitted the evidence as proof of customary systems (for example a system of defining boundaries to land) without finding that the evidence was admissible as proof of the truth of the contents of the statements: "Given the issues in this case and the nature of the remitter I have no difficulty in receiving evidence directed to prove custom in terms relevant to the issues .... That does not however have the consequence that the plaintiffs have succeeded in proving such customs or the rights for which they contend or that any such rights should be recognised as the plaintiffs contend. The difficulty I have is rather with the effect to be given to such evidence rather than with its admissibility." (1992) 1 Queensland Reports 78 at 90.
Keywords: Castan, Ron, evidence, hearsay, Moynihan, Justice Martin, oral evidence, oral tradition, 1987-1992
Author: Kenna, Jonathan
Source: (1992) 1 'Queensland Reports' 78 at 90.
Source: (1992) 1 'Queensland Reports' 78 at 90.