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...The shift to the High Court...
Nonie Sharp explains some of the factors which lay behind counsel for the plaintiffs' decision to press for an adjournment of the Queensland Supreme Court's determination of the facts and to move for a speedy High Court hearing into their challenge to the Queensland Act:
'After the first days of Eddie Mabo's evidence-in-chief, it had become apparent to the Murray Islanders counsel that, given the strategy being used by Queensland (and the judge's incapacity to rule against the constant objections), the continuation of the hearing of evidence might not offer Islanders 'the chance to present their case and so add to the strength of their community.'

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.

On this basis and another consideration, the case was referred back to the High Court. The additional consideration, not unconnected with the course that events had begun to take in the Supreme Court of Queensland, concerned funds. On 27 March 1987, Greg McIntyre, instructing solicitor for the plaintiffs, was informed by officers of the Office of Legal Aid Administration, Attorney-General's Department, Canberra, that moneys being provided to the plaintiffs had been exhausted and that they would be recommending to the Attorney-General that no further funds be made available to them. A recommendation from the legal aid officers to the Attorney General was foreshadowed, approving a grant in aid to the plaintiffs to fund proceedings in the High Court on questions of law. This related to the logistical problems encountered in hearing the facts. This had originally been intended to take four weeks, but a further 11 weeks had been set aside in the first half of 1987. Justice Moynihan stated that this was probably not long enough to complete the hearing, and that there was unlikely to be court time available in the second half of 1987. Although each may have had different reasons, the State of Queensland, the plaintiffs, and Justice Moynihan were all in favour of determination of questions of law at this stage by the High Court.

The Attorney-General's Department had noted that a continued hearing of the facts with 27 islander witnesses and six expert witnesses would incur a financial burden of an estimated further $200 000 if Queensland's continued objections to oral evidence were to be pursued at the previous rate.'
Keywords: evidence, funding, hearsay, High Court of Australia, Mabo, Edward Koiki, McIntyre, Greg, Moynihan, Justice Martin, No Ordinary Judgement, oral evidence, oral tradition, Sharp, Dr. Nonie, Supreme Court of Queensland, 1987

Sharp, Nonie 1996 'No Ordinary Judgement', Aboriginal Studies Press, pp 42-43.
Author: Kenna, Jonathan