Case: Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561
Outcome: applied
The evidentiary burden on a party in Worimi's position in circumstances where the moving party must prove a negative proposition has been described in Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (at 565) as similar to ' the evidential burden placed upon an accused in a criminal trial who seeks to raise the issue of self-defence which the Crown must disprove '. 57 All of the evidence is to be weighed according to the proof which it was in the power of one side to produce and in the power of the other to have contradicted ( Apollo Shower Screens at 565). Once the Land Council has established sufficient evidence from which the negative proposition, an absence of native title, may be inferred, Worimi carries an evidential burden to advance evidence of any particular matters going to the existence of native title. It is then for the Land Council to deal with the evidence in the discharge of its overall burden of proof ( Apollo Shower Screens at 565). 58 Worimi submits that the Land Council is in a position to call all of the customary expert evidence and has not done so. The Land Council submits that Worimi is in the position to adduce evidence from other Worimi persons in support of his claim and has not done so. Each party asserts that he or it is under no obligation to provide further evidence. 60 The power of a party to adduce evidence may be relevant to the weight to be accorded to the evidence presented ( Apollo Shower Screens at 565; Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65; Ho v Powell (2001) 51 NSWLR 572 at [15]). It may also be relevant to the standard of proof. There is, however, a distinction between the probabilities on limited material available and whether limited material provides an appropriate basis on which to reach a reasonable decision ( Ho at [14]). 188 Much has been made in submissions of which party is better able to call evidence and the effect on the proof of a negative proposition. On one hand, the Land Council has not called evidence from all the Worimi people. It has called seven witnesses, some of whom have studied Worimi history and have knowledge of Worimi laws and customs and others from Worimi's family. It has, as I have said, been authorised to bring this application. Worimi asserts that (at least) his family, as part of the Garuahgal clan, has native title rights and interests over the Land. It is Worimi who has the greater means to produce evidence from his family or from other Garuahgal or Worimi people to contradict the proposition of no native title. In particular, if Worimi asserts that Lot 576 and Kingsley Beach are a women's site of which he cannot have personal knowledge, the absence of any evidence of the laws and customs associated with that site from a woman supporting his assertion is telling. The only evidence in support of Worimi's claims was filed in respect of his claimant applications and was from Worimi's mother, who is Yorta Yorta, and from his wife, sister and daughters (Priscilla Dates changed her evidence in these proceedings), who say little more than that they take their information from Worimi and support his assertions. The failure on Worimi's part to call corroborative evidence lessens the burden of proof on the Land Council to establish the negative proposition ( Apollo Shower Screens at 565). It does not increase the burden on the Land Council. 189 I am satisfied that there has not been the necessary connection with the Land and the observance of the asserted laws and customs. This is not because of Worimi's temporary absence in Western Australia. It is because, on the evidence, I am satisfied that there was no women's site on or near Lot 576 and that there was no use of a waterhole on or near Lot 576 associated with the birth of Worimi children. If there were such a site or such use, it has long since ceased to be used. Worimi's attempt to revive such use in the case of his daughter and the birth of his grandson is insufficient to give rise to native title rights and interests in the Land. 190 The group or communal rights that form the basis of Worimi's case are in respect of the claimed women's sight on or near the Land. The characterisation of Worimi's asserted native title rights and interests has changed over time. Worimi also claims rights in respect of his own observance of traditional hunting and gathering customs on the Land. However, Worimi appears to assert that these rights are held by all Worimi people or at least by the Garuahgal clan. There is no sufficient evidence that any such rights, whether individual, group or communal, are possessed under a normative system of traditional laws acknowledged and customs observed by Worimi people or by the Garuahgal clan. Worimi's account of traditional hunting and gathering law and custom has been disputed by the Land Council's witnesses.