Case: Daniel v State of Western Australia (2000) 178 ALR 542
Outcome: referred to
The relevant provisions of the Evidence Act have been analysed in cases such as Daniel v State of Western Australia (2000) 178 ALR 542, Neowarra and in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 2) (2003) FCA 893 ( Harrington-Smith ). I respectfully adopt those analyses. It is therefore necessary to refer only briefly to its provisions. 457 His Honour observed at [24] - [25] that 'the Evidence Act does not, in terms, require, as a condition of admissibility, that an expert witness state distinctly and fully the facts assumed as the basis of his or her opinion: cf ALRC Report No 26 ('Evidence') vol 1, par 750; Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374 per Branson J; Daniel v State of Western Australia (2000) 178 ALR 542 (RD Nicholson J) at [5]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 per Branson J at [10]. But expert opinion will not be relevant if there is an insufficient correspondence between all the facts assumed by the expert as the basis for his or her opinion, and those proved or admitted: cf Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 648-649. Absent that sufficient correspondence, it cannot be known whether the opinion proffered applies to the facts proved or admitted. If I cannot discern in a report, distinguishing between them, the expert's opinion and all facts assumed by the expert on which that opinion is based, I will not be able to be satisfied: &#8226; that the assumed facts are, to a sufficient degree, the actual facts as I find them to be, to make that opinion "relevant" for the purposes of s 56 of the Evidence Act (cf Quick at 374 per Branson J; Sydneywide at [14] per Branson J); or &#8226; (perhaps) that the opinion proffered is one substantially based on the expert's specialised knowledge, for the purposes of s 79 of the Evidence Act (cf Makita at [85] per Heydon JA) While perhaps it cannot be said that in all cases evidence of expert opinion will be inadmissible if an expert does not separately list all the factual assumptions underlying his or her report, if this is not done, there is a substantial risk that the court will not be able to be satisfied on reading the report, as to what they were, with the result that the opinion will be inadmissible. If the expert does not state and distinguish between all the factual assumptions underlying the opinion and the opinion itself, can I be satisfied that the two criteria of admissibility mentioned are met? ' 463 Nicholson J discussed the specialised knowledge of anthropologists in Daniel v State of Western Australia (2000) 178 ALR 542 at [24]: 'The specialised knowledge of an anthropologist derives from the function to be performed by the anthropologist and for which he or she is trained and in relation to which study has been undertaken and experience gained. "Anthropology" is the science of humankind, in the widest sense: The New Shorter Oxford English Dictionary, p 87. Cultural or social anthropology is the science of human social and cultural behaviour and its development. Socio-cultural anthropology is traditionally divided into ethnography and ethnology. The former is the primary, data-gathering part of socio-cultural anthropology, that is, field work in a given society. This involves the study of everyday behaviour, normal social life, economic activities, relationships with relatives and in-laws, relationship to any wider nation-state, rituals and ceremonial behaviour and notions of appropriate social behaviour. See C P Kottak, Anthropology: the Exploration of Human Diversity, 3 rd ed, 1982, p 12. It is apparent that an anthropologist carrying out field work is more than likely to speak to a wide range of persons in the people under examination.'