Group Evidence

646. Land Claim Initiatives. An Aborigine may have, according to customary laws, no authority to speak on a given matter, but may be able to give evidence in conjunction with others who collectively have such authority. The land claim experience has been that the Aboriginal evidence is likely to be both fuller and more persuasive when it is given in the presence of peers who both by their own evidence and by their demeanour confirm the truth of what is said. Such group evidence may be an important way of increasing both the accuracy and the amount of evidence from a witness. It helps to overcome a situation where one person has no right to speak alone but can do so in the presence of others. According to Neate the advantages of group evidence are:

(i) giving confidence to witnesses in an unfamiliar (court-like) environment;

(ii) allowing the accuracy of the evidence to be checked immediately through

(a) the correction of errors by others in the group and

(b) the confirmation of correct evidence

(both being shown verbally and by the demeanour of the witnesses);

(iii) ensuring that complete evidence is given by the witnesses. For example, where matters of a ceremonial nature are in issue it may be inappropriate because of Aboriginal rules of conduct for one person to give all the evidence. Though he or she may know all the answers there may be rules against him or her giving them. In this context diffidence in answering should not be equated with ignorance. Where one person is able to defer to another member of a group (the proper witness on that point) a complete and accurate answer can be given.[740]

However this approach is not entirely free of difficulty, as Justice Toohey, the former Aboriginal Land Commissioner, pointed out:

the [practice of] giving of evidence in groups ... which has grown up since early hearings under the Land Rights Act ... generally has proved satisfactory. However it does have some problems, not the least of which is ensuring that the transcript of evidence accurately reflects the individual speakers. But it has wider implications than that. In her comments on the claim, Ms Susan Tod Woenne, consultant anthropologist to the Commissioner, said:

whilst there are definitely advantages in taking evidence from groups of witnesses...there are also disadvantages in that it is often difficult to assess whether the evidence spoken by one of the group is an individual view, a view of several (or all) of those present, or an attempt to assist another in communicating with counsel and or his Honour. This is particularly the case if the group is asked as a group to respond to questions when the facility in English amongst its members is varied, when the group is very large, and or when the age range with the group is considerable ...

I agree with this. It becomes a matter for judgment whether a view expressed is that of the individual speaking, whether it is merely the passing on of the statement of another, whether the evidence is that of the group or perhaps of someone whose will has overborne that of others. While retaining the advantages of people being grouped to give evidence, it is better if questions can be directed to particular named individuals. It helps (and this has been done by counsel in some hearings) if counsel can, in identifying the person giving the answer, say whether the speaker appears to be giving his own answer or merely interpreting for or assisting another.[741]

When group evidence is given there is also a need if possible for ‘a transcript of evidence in English and the Aboriginal language to ensure that the subtleties of the latter language had been properly translated’.[742]

647. Other Administrative Hearings. The Broadcasting and Television Act 1942 (Cth) s 25(2) provides that the Australian Broadcasting Tribunal is not bound by rules of evidence and may inform itself in such manner as it thinks fit. The Tribunal frequently takes group evidence, for example from public broadcasters, children’s television groups and union interests. The practice is to swear in several members of the organisation concerned, and to enable them to defer to each other in responding to questions from the Tribunal.[743] Another body which has been prepared to take group evidence is the Northern Territory Liquor Commission. The Commission has power under the Liquor Act (NT) s 50(2A)(d) to inform itself as it thinks fit, and is not bound by the rules of evidence. In an application involving the Desert Oaks Motel, Erldunda, the Commission noted that it could take a number of steps to ensure a witness could give effective evidence:

These steps can be imagined as points upon a continuum, one end of which is the most formal hearing that the Commission could conduct, that is, in a Magistrates Court and strictly in accord with the rules of evidence and court procedures. At the other extreme is the proposal put at the hearing, that is, to take into account hearsay evidence from groups of witnesses in a bush setting.[744]

The Full Commission determined that in the case before it, it would not take evidence at the Aboriginal community concerned, but that it would accept group evidence, and would make other concessions in relation to the rules of evidence.[745]

648. Application to Court Hearings. A hearing in the court of summary jurisdiction at Tennant Creek, Police v Isobel Phillips,[746] provides a good illustration of a way in which existing procedures may be adapted to allow group evidence to be taken. At the request of an Aboriginal Legal Service solicitor, Mr Murphy SM allowed four senior Aboriginal women to be sworn and give evidence as a group. Counsel applied

to adopt a rather unusual course in a criminal court although ... it is an action which is frequently adopted in land claim hearings. There are four women in court and I would like to have them all sworn together to give evidence together, although ... for the purpose of the transcript, the witness providing the answer would have to be identified. [Some] questions I want to ask would be appropriate for one woman to answer and others for another woman to answer.[747]

Counsel’s purpose in calling the four women was to determine the Aboriginal customary laws applicable to a fight between two young Aboriginal women. Individually, the older women did not have authority to speak on all aspects of the incident (principally because of their relationship to the younger women involved), or they did not have full knowledge of the relevant customs. Their giving evidence together ensured them against later accusations of interfering in another person’s business.[748] The calling of group evidence in this case was apparently effective in that case, and greater use of such proceedings is to be encouraged.[749] Care should be taken to ensure that witnesses are cross-examined and re-examined on their own evidence only.[750] During questioning members of the group may not feel comfortable about their right to answer a particular question, and may wish to add the appropriate person to the group. This should be allowed, with that person being sworn and examined in turn. The courts may already have power (as an aspect of their inherent power to regulate their own procedure) to enable group evidence to be taken along these lines.[751] There can be real advantages in such ‘group evidence’ being given by traditionally oriented Aborigines, especially on matters related to Aboriginal customary laws. Courts should be encouraged to exercise their existing powers, on the application of a party, to take evidence in this way. To this end, and to clarify the question whether such evidence can be permitted, legislation dealing with proof of Aboriginal customary laws should include a power in the court or tribunal to give necessary directions to enable two or more members of an Aboriginal community to give evidence pertaining to the customary laws of that community together, where this is necessary or desirable.