Case: Browne v Dunn (1893) 6 R 67
Outcome: cited
A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ. 301 These authorities demonstrate that, subject to the operation to the rule in Browne v Dunn, a failure to cross-examine a witness does not necessarily mean that the Court is bound to accept the evidence of that witness. Nonetheless, general observations of the kind expressed by Professor Sutton about the reliability of some of his informants cannot substitute for an evaluation of their evidence given on oath or affirmation in open court. Generally speaking, if particular features of the evidence given by indigenous (or other) witnesses have not been challenged in cross-examination, there need to be cogent reasons for rejecting that evidence. An example might be where two Aboriginal witnesses have given contradictory evidence in relation to the same issue, in which case it may be necessary to choose between the two versions. However, the question still remains as to whether the evidence adduced by the applicants is sufficient to establish the essential elements of their case. 302 The Commonwealth tendered statements from seven witnesses as follows: &#8226; Yami Lester, who gave evidence concerning, among other topics, his role as a member of ARAC in 1974-1975, including his participation during that period in site inspections and in consultations with the traditional owners of Uluru. &#8226; Kane Hardingham, who was an Environment Manager with Voyages Hotels and Resorts Pty Ltd, based at Yulara. Mr Hardingham gave evidence that in June 2001 a number of Aboriginal women showed him a site located in a pit within the boundaries of Connellan Airport. He was told that the Two Sisters sat at this site. &#8226; Colin French, a Project Manager with Geoscience Australia, who gave evidence as to whether the sites for a possible airport and town marked on drawings prepared in 1974 corresponded to the sites at which Connellan Airport and the tourist facilities were ultimately constructed. &#8226; Ian Cawood, formerly an Assistant Ranger at Ayres Rock - Mt Olga National Park, who gave evidence of his experiences in the course of his extensive involvement with the area, including his participation in the work undertaken by ARAC from 1974 to 1976. Ian Cawood first arrived at Uluru in 1960 in order to work in the family business, the Ayres Rock Chalet. He remained at Uluru until 1982. For the last 14 years of his stay Mr Cawood worked with Derek Roff as Assistant Ranger at the Ayres Rock-Mount Olga National Park. &#8226; Nicholas Browning, who worked with the Australian Presbyterian Board of Missions at Fregon and Everard Park (Mimili) for various periods from 1966-1974 and thereafter with the Department of Aboriginal Affairs in Alice Springs (1974-1981). Mr Browning gave detailed evidence of his work with ARAC and his involvement in consultations undertaken through that body in order to identify and locate Aboriginal people with interests in and around Uluru. Mr Browning knew Paddy Uluru and Reggie Uluru during his time at Fregon and Mimili. Mr Browning acquired fluency in the Yankunytjatjara, Pitjantjatjara and Luritja languages. &#8226; Ivan Cebelo, who was employed in the construction of Connellan Airport from December 1995 until December 1996. Mr Cebelo gave evidence that the registered site now known as Katartitja was excavated in 1996. Mr Cebelo also authenticated contemporary photographs of the site and the surrounding area. &#8226; Creed Lovegrove, who was Director of Welfare in the Northern Territory (1972-1974) and subsequently Director of Aboriginal Affairs (NT) (1974-1977). Mr Lovegrove gave evidence of his role in the consultations carried out under the auspices of ARAC in 1974 and 1975. Three of these witnesses, namely Messrs Lester, Browning and Cawood, were cross-examined. 303 The Commonwealth submits that the evidence of the seven witnesses who provided statements is supported by contemporary documentary evidence (such as the records of ARAC) and corroborated by a number of witnesses called on behalf of the applicants, including some senior Aboriginal people. According to the Commonwealth, the evidence establishes the following propositions: &#8226; the Commonwealth's decision to establish the Town of Yulara was made in deference to Aboriginal concerns over the presence of tourist facilities in close proximity to Uluru; &#8226; the site for the Yulara township and airstrip was decided upon following extensive consultations with local Aboriginal people and with other senior Aboriginal people from the region; &#8226; the site for the Yulara township and airstrip was agreed upon and approved by the Aboriginal people who were consulted; &#8226; particular care was taken to ensure that the site for the proposed township and airstrip did not contain any culturally sensitive areas, such as sacred sites; &#8226; at the date when Aboriginal approval was obtained for the location of the proposed township and airstrip, the Application Area did not contain any culturally sensitive areas, such as sacred sites; and &#8226; at the time Julia Munster and Kevin Murphy (both of whom were anthropologists engaged by the Central Land Council) carried out a cultural survey in 1996 of the proposed extensions to the airstrip and associated works, there were no culturally sensitive areas or sacred sites within the airport and, in particular, within the site of the proposed works.