In the June 2023 issue of Hearsay I wrote on the topic of “Witness Training – Ethical Preparation or Unethical Coaching?”. There I referred to r 68 of the Barristers Rule 2011 (Qld), under which there was proscribed a barrister proceeding to “advise or suggest to a witness that false or misleading evidence should be given [or] condone another person doing so” or to “coach a witness by advising what answers the witness should give to questions which might be asked”. So much is part and parcel of a barrister’s obligation under rule 12(b) proscribing “conduct which is … prejudicial to the administration of justice”. Similar obligations obtain in respect of solicitors in Queensland. Such rules are longstanding and are universal across the states and territories. In Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 (15 January 2024), Charlesworth J expressed that the solicitor for one of the parties had engaged in conduct which, at the least, operated to distort or manipulate the lay evidence relied upon to found the expert evidence adduced by that party at trial. In addition, her Honour found that party’s expert did “lie” to lay witnesses in conference in formulation of their evidence, leading to such expert’s impartiality not being accepted, and lay witnesses being misguided and their evidence not accepted (in part). The case exemplifies the need for a high degree of care to be exercised by lawyers and experts in order to maintain the integrity of evidence sought to be adduced at trial in their client’s case.
Her Honour wrote:
[1] The applicants, Simon Munkara, Carol Puruntatameri and Maria Purtaninga Tipuamantumirri are Aboriginal people from the Tiwi Islands. They assert that they have cultural and spiritual connections to the sea forming part of their clan country.
[2] The Tiwi Islands are located about 80km north of Darwin in the Timor and Arafura Seas. Parts of those waters are offshore areas within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The Act establishes a regulatory framework for petroleum exploration and recovery in offshore areas extending seaward to the outer limits of the continental shelf.
[3] The respondent, Santos NA Barossa Pty Ltd ACN 109 974 932 is the proponent of a project for the extraction and export of gas from the Bonaparte Basin in the Timor Sea, known as the Barossa Project. It is the holder of a number of licences issued under the Act authorising certain activities for the construction of infrastructure for the extraction and conveyance of gas in offshore areas. One of those activities involves the construction of a 262km gas export pipeline (referred to at times as the GEP), commencing in the Barossa Field and joining the existing Bayu-Undan pipeline in the south. The pipeline route passes to the west of the Tiwi Islands, past Cape Helvetius and within 7km of Cape Fourcroy. When completed, the pipeline will be used to supply gas to a liquified natural gas processing plant in Darwin.
[4] The applicants alleged that there is a risk that the construction of the pipeline, and its existence on the sea bed, will significantly impact their cultural heritage.
[5] The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (2023 Regulations) came into force on 10 January 2024, less than a week before the publication of these reasons. They repealed and substituted the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) to which the parties referred throughout the proceedings. The provisions of the now repealed Regulations have been re-numbered or organised differently in the 2023 Regulations, but in substance they are left unchanged. An explanatory memorandum to the 2023 Regulations confirms that changes in language are not intended to alter the meaning of the law as previously in force. In these reasons I will refer to the Regulations as numbered and in force when this action commenced, as they are relevantly unchanged by the 2023 Regulations. Neither party has suggested that the outcome would differ under the law now in force and I am independently satisfied that is so.
[6] The Regulations establish a regime for the preparation by a titleholder of an environment plan for an “activity”, and acceptance of the environment plan by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). On 9 March 2020 NOPSEMA accepted an environment plan relating to the construction of the pipeline, titled “Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Revision 3, February 2020)” (Pipeline EP). That is the environment plan that is “in force for the activity” for the purposes of reg 17(6) of the Regulations. It provides:
New or increased environmental impact or risk
(6) A titleholder must submit a proposed revision of the environment plan for an activity before, or as soon as practicable after:
(a) the occurrence of any significant new environmental impact or risk, or significant increase in an existing environmental impact or risk, not provided for in the environment plan in force for the activity; or
(b) the occurrence of a series of new environmental impacts or risks, or a series of increases in existing environmental impacts or risks, which, taken together, amount to the occurrence of:
(i) a significant new environmental impact or risk; or
(ii) a significant increase in an existing environmental impact or risk;
that is not provided for in the environment plan in force for the activity.
[7] Regulation 8 provides that a titleholder commits an offence if the titleholder undertakes an activity after the occurrence of (relevantly) any significant new environmental impact or risk arising from the activity which is not provided for in the environment plan in force for the activity.
[8] Multiple questions of construction arise, including the intended meaning of the words “occurrence”, “significant”, “new” and “risk”, which are not defined in the Regulations. As will be explained later in these reasons, the word “environment” is broadly defined in the Regulations to include (among other things) “cultural features” of places, locations, areas and ecosystems. The phrase “cultural features” is not defined.
The applicants’ case
[9] The first applicant, Simon Munkara, commenced this action on 30 October 2023, two days before works for the construction of the pipeline were then scheduled to commence. Carol Puruntatameri and Maria Tipuamantumirri were later joined as the second and third applicants. The applicants are respectively members of the Jikilaruwu, Munupi and Malawu clan groups.
[10] The applicants alleged that Santos presently has an obligation under reg 17(6) to submit a revised environment plan, that obligation having been triggered by an “occurrence”. They alleged that the construction of the pipeline gives rise to a significant new environmental impact or risk, or a significant increase in an existing environmental impact or risk, that is not provided for in the Pipeline EP, within the meaning of reg 17(6). They alleged that commencement of the works for the construction of the pipeline would constitute an offence under reg 8.
[11] Numerous risks were relied upon, referred to at trial as relating to both “intangible cultural heritage” and “tangible cultural heritage”.
[12] The case concerning intangible cultural heritage was based in part on two Dreaming stories said to form a part of the applicants’ cultural life relating to two ancestral or spiritual beings: a rainbow serpent or serpents known as Ampiji, and the Crocodile Man, known as Jirakupai.
[13] There are two aspects to the intangible cultural heritage case.
[14] The first aspect is one founded on ancient oral tradition, involving song lines told by certain clans of the Tiwi Islanders both in words and in their songs, dances and ceremonies over many generations. Reduced to its briefest expression, the allegation is that:
(1) There are one or more rainbow serpents named Ampiji, one of which resides in Lake Mungatuwu, a freshwater lake in the south west of Bathurst Island. Ampiji is a caretaker of the land and the sea. She patrols the coastline around the Tiwi Islands and also travels into the deep sea and thus into the vicinity of the pipeline. The risk arising from the activity was alleged to include a fear that the construction and presence of the pipeline would disturb Ampiji and that she may cause calamities, such as cyclones or illness that would harm (at least) the people of certain clans. The applicants allege that the pipeline will thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to areas of sea country through which the pipeline will pass.
(2) The Crocodile Man song line is connected with a place in the sea in the vicinity of the pipeline. The applicants allege there is a risk that the activity will disturb the Crocodile Man in his travels and thereby damage the spiritual connection of the Jikilaruwu people to areas of sea country through which the pipeline will pass.
[15] The second aspect of the intangible cultural heritage case relied upon what was referred to in closing submissions (but not before then) as “potentially adapted beliefs”. It involves an account of Ampiji said by the applicants to have been recently adapted in response to new information Tiwi Islanders have obtained about their sea country, presented to them by a geoscientist in June 2023. The new information, on the applicants’ case, is that in ancient times when the land now forming the sea bed was subaerially exposed, there existed a very large and deep freshwater lake in the area situated about 10km from what is now the western most point of Bathurst Island at or around Cape Fourcroy. At the mouth of the lake, the applicants allege, was an embayment (a recess in the landscape). Whether those features ever existed is an issue in dispute. I will refer them as the Ancient Lake and the Ancient Embayment without suggesting any finding that they ever existed in fact.
[16] The pipeline route lies between Cape Fourcroy and the place where the Ancient Lake and the Ancient Embayment are allegedly situated. The Ancient Lake is referred to in some materials as a “sacred freshwater source”.
[17] The “potentially adapted beliefs” proceed from the premise that culture is ever changing, that matters of traditional cultural significance may evolve and adapt to new situations and circumstances, including new information and knowledge. The alleged adapted belief is that there exists a Mother Ampiji who lives in the Ancient Lake. The Mother Ampiji travels around the sea, including around the Tiwi Islands. The applicants assert a spiritual belief that the pipeline will pass between the Ancient Lake and the Tiwi Islands, that it will “disconnect” the Jikilaruwu, Munupi and Malawu clans from the Ampiji who lives in the Ancient Lake and thereby damage the spiritual connection of the Jikilaruwu, Munupi and Malawu people to the areas of their sea country through which the pipeline will pass.
[18] The claims relating to Mother Ampiji and the Ancient Lake are also alleged to form a part of ancient Tiwi traditional knowledge and belief passed to Carol Puruntatameri by older generations.
[19] The case founded on tangible cultural heritage alleged that there may be an archaeological record on and under the sea bed in the area to be affected by the activity, specifically objects and artefacts evidencing human occupation and activity from tens of thousands of years ago when the sea bed was subaerially exposed. The applicants alleged that there is a risk that the activity of constructing the pipeline and its embedment into the sea bed will cause the loss, destruction or relocation of some of that archaeological record and so presents a risk to Aboriginal cultural heritage having significance to the Jikilaruwu, Munupi and Malawu people. In addition, the applicants allege that the activity creates a risk of disturbance or destruction of a series of burial grounds that are said to be located between the pipeline route and the west coast of Bathurst Island.
[20] Each of the alleged risks were described as involving a “real chance” of there being “notable” consequences, language that reflected the applicants’ preferred construction of reg 17(6).
[21] The applicants allege that, for the purposes of reg 17(6), the risks asserted by them are “new” because they were not previously assessed by NOPSEMA and that they are not provided for in the Pipeline EP that is presently in force. They alleged that there was an “occurrence” of the risks within the meaning of the provision when the risks were first brought to Santos’ attention in late 2022 and throughout 2023, including by the commencement of these proceedings. They submitted that the conditions to trigger the obligation in reg 17(6) exist, and that Santos is therefore obliged to submit a revised environment plan to NOPSEMA for assessment. Upon the submission of such a plan, it would be for NOPSEMA to determine whether or not it should be accepted in accordance with conditions on its powers identified elsewhere in these reasons.
[22] The above paragraphs give only a crude summary of the applicants’ case. They are intended to provide a sketch of broad issues so that the lengthy summaries of evidence that are soon to follow can be read with some framework of the allegations in mind. The case as finally articulated in closing submissions is detailed at [847] below.
The relief sought
[23] The relief sought on the amended originating application filed 22 November 2023 included a declaration under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) that:
1A.… the Respondent must submit a proposed revision to the Pipeline EP that provides for the risk posed by the Activity to submerged Tiwi cultural heritage, in accordance with reg 17(6) of the Environment Regulations.
[24] In addition, the applicants sought a permanent injunction restraining Santos from undertaking the activity of laying the pipeline until it submits a proposed revision of the Pipeline EP in accordance with reg 17(6) and that revision is accepted by NOPSEMA.
The role of the Court
[25] This not an application for judicial review of any prior decision of NOPSEMA, and NOPSEMA is not joined as a party. The case articulated by the applicants was confined to an allegation that Santos has a present obligation to submit a revised environment plan. Even if that allegation were to be proven to the requisite standard, it would form no part of the Court’s function to decide what consultation must then take place between Santos and any person. Nor would it form any part of the Court’s function to determine what the content of any revised environment plan should be, nor to determine whether such a plan could or should be accepted by NOPSEMA.
Summary of outcome
[26] For the reasons that follow the evidence does not establish that the obligation under reg 17(6) (properly construed) has been triggered. It follows that the amended originating application must be dismissed.
THE TRIAL AND EVIDENCE
[27] This action was commenced by originating application filed on 30 October 2023, accompanied by an interlocutory application seeking urgent injunctive relief. Simon Munkara was at that time the sole applicant. Argument on his application for interim relief extended into the evening of 1 November 2023. On the following day, the Court granted a short term injunction to restrain all work on the pipeline until 13 November 2023. Orders were made setting the matter down for more detailed argument on the question of whether there should be an ongoing injunction pending final judgment in the case. Oral reasons were given and written reasons followed: Munkara v Santos NA Barossa Pty Ltd[2023] FCA 1348 (Munkara No 1).
[28] In Munkara No 1, I explained why I was satisfied that the Court had jurisdiction to grant the relief then sought by Simon Munkara, and why I was satisfied at that time that he was a person who had standing to apply for it (at [39]–[55]).
[29] The interim injunction remained in force until 15 November 2023. On that day, the Court granted an interlocutory injunction of a more limited kind. The order had the effect of restraining Santos from undertaking works on all but the northernmost 86km of the pipeline route and was expressed to remain in force until 15 January 2024, or such later date as the trial judge may determine: Munkara v Santos NA Barossa Pty Ltd (No 2)[2023] FCA 1421 (Munkara No 2). At the time of those orders, the final relief sought on the originating application was confined to an injunction. The claim for declaratory relief was later added by amendment.
[30] In Munkara No 2, I addressed again the questions of jurisdiction and standing, including by rejecting a new argument raised by Santos on those questions. Questions of jurisdiction and standing have not been re-agitated and I remain of the views expressed in Munkara No 1 and Munkara No 2 on those interrelated topics.
[31] An important feature of these proceedings is that the application for the interlocutory injunction was unsupported by any undertaking as to damages given by Simon Munkara or any person on his behalf. I concluded that it was in the interests of justice to proceed expeditiously to trial and judgment. That is principally because of conclusions I had previously drawn as to where the balance of convenience lay with respect to the injunctive relief, considered in light of the absence of the usual undertaking, and having regard to an earlier indication from Simon Munkara’s Counsel that he and other likely applicants were ready to proceed to trial. In addition, contractual terms relating to the pipeline’s construction were such that Santos’s losses were likely to significantly increase if the restraint were to remain in force for a longer period of time.
[32] In the circumstances just described, the Court’s practice and procedure provisions have been applied in a way to best achieve the objective of making final orders on or before 15 January 2024, being the earliest date on which the Court could conceivably deliver judgment, having regard to the number and nature of issues in dispute. The matter was made ready for trial within a tight timeframe given its factual and legal complexity. The trial proceeded over 10 days in tranches between 4 and 22 December 2023, including oral closing submissions. The Court then received written closing submissions on 4, 5 and 7 January 2024.
[33] The matter proceeded by way of a concise statement and a concise response in lieu of formal pleadings, although as will be seen, over the course of the proceedings the applicants reframed some aspects of their case and abandoned others.
Lay evidence
[34] The Court received written and oral evidence from 23 Aboriginal witnesses from the Tiwi Islands (in roughly even numbers from both sides of the dispute). The focus of the applicants’ case is on the people of three clan groups having land and sea country on and to the west of the Tiwi Islands, namely the Jikilaruwu, Munupi and Malawu clans. The 23 witnesses were from six clans, namely the Jikilaruwu (Simon Munkara, Ancilla Warlapikimayuwu Kurrupuwu, Molly Munkara, Valentine Intalui, Magdalen Kelantumama, Marie Frances Tipiloura, Eulalie Munkara, John-Louis Munkara, Jonathon Munkara, Mario Munkara and Theresa Munkara) the Munupi clan (Dennis Murphy Tipakalippa, Pirrawayingi Puruntatameri, Richard Tungatalum and Carol Puruntatameri), the Malawu clan (Therese Wokai Bourke and Marie Tipuamantumirri), the Wurankuwu clan (Tony Majirliyanga Pilakui and Brian Dixon Tipungwuti), the Mantiyupwi clan (Kaitline Kerinauia, Wesley Kerinaiua and Walter Kerinauia) and the Wulirankuwu clan (Stanley Tipiloura).
[35] Given the common surnames, I will refer to the Tiwi witnesses by their full names throughout these reasons.
[36] The first tranche of the trial was conducted in Darwin over four days, it being the most proximate place to the Tiwi Islands, the place of residence of nearly all of the lay witnesses. The applicants’ early suggestions for an on-country sitting were rejected as unrealistic.
[37] The Court made orders for lay evidence-in-chief to be adduced by way of affidavit or by adoption of written witness statements. The parties had liberty to apply to adduce evidence-in-chief viva voce. However, that liberty was not exercised, other than the applicants making an application to give song and dance evidence by way of demonstration under s 136 of the Evidence Act 1995 (Cth). That application was disallowed principally because the time available for the sitting in Darwin was already too compressed, but also because there would be an insufficient opportunity for Santos to obtain advice and give instructions to enable the applicants’ witnesses to be cross-examined in respect of some disputed matters that were expected to arise from it. The applicants ultimately tendered video recordings of the songs and dances. The Court made a ruling limiting their use, to avoid unfairness arising from their late provision.
Expert evidence
[38] The Court has before it 26 expert reports prepared by multiple experts, many of them responsive or counter-responsive. It is convenient at this juncture to name the experts and to give shorthand descriptions for their reports. The shorthand descriptions will be used throughout these reasons without referring again to the report titles. Some of the earlier reports were commissioned and produced before the proceedings were commenced and for purposes relating to a General Direction issued by NOPSEMA, discussed below. Consequently, some of the instructions put to the experts do not align entirely with the subject matter of the litigation. Each report is to be understood in the context in which it was sought and prepared. For the most part the experts themselves have acknowledged that limitation.
[39] For convenience I will use the title “Dr” in connection with most experts, meaning no disrespect to those with higher titles.
…
Dr Mick O’Leary
[48] Dr Mick O’Leary is an Associate Professor at the School of Earth Sciences and the University of Western Australia Oceans Institute. He holds a PhD in Marine Sciences (James Cook University). Dr O’Leary has consulted on resource project assessments and conducts research with a focus on geomorphology and archaeology. Dr O’Leary provided five reports:
(1)“Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment”, dated July 2023 (O’Leary 1);
(2)“Supplementary report to the Barossa Gas Export Pipeline Installation Underwater Cultural Heritage Assessment”, dated 11 September 2023 (O’Leary 2);
(3)“Further supplementary report responding to matters arising from a report authored by Dr Brendan Corrigan titled Assessment to identify any underwater cultural heritage places along the Barossa pipeline route to the west and northwest of the Tiwi Islands, Northern Australia”, dated 7 October 2023 (O’Leary 3);
(4)“Supplementary Report #3 Assessing uncertainty arising from findings in the Wessex and Posamentier underwater cultural heritage (UCH) assessments”, dated 27 October 2023 (O’Leary 4); and
(5)“Supplementary report #4 responding to matters arising from a report authored by Prof Henry Posamentier titled Comments on the Barossa Gas Export Pipeline Underwater Cultural Heritage Assessment Report”, dated 30 November 2023 (O’Leary 5).
…
Video evidence
[52] The Court has before it video evidence falling within two categories. There are 10 video recordings of traditional dances performed by the applicants and other Tiwi Islanders evidencing their traditional connection to the sea and their song lines. There are a further 41 video recordings of some events that occurred at a workshop on 19 June 2023 with Dr O’Leary (June O’Leary Workshop).
…
[989] There are three features of the applicants’ testimony that warrant specific mention. The first relates to my observations of Simon Munkara as a witness. I observed him to be proficient in English. He was conscious that other more senior members of the Jikilaruwu clan were disapproving of his conduct in commencing these proceedings without first consulting them or the whole of the clan in accordance with what he accepted is the proper custom. His apology for doing so appeared genuine. However, I have some difficulty accepting his explanation that he did not have time to even inform other members of the clan about the commencement of the action. His evidence must be considered in the context of his awareness that the pipeline is a divisive subject, even among Jikilaruwu people. The Jikilaruwu Elders who were not notified of the intention to commence the proceedings happened to be persons who hold the view that the pipeline is not harmful to Tiwi cultural heritage. Furthermore, Simon Munkara has been a client of the EDO from at least December 2022 and other evidence reveals that he has attended at least one meeting where the commencement of court proceedings was discussed as part of an overall strategy to stop the pipeline. Persons who were in favour of the pipeline were not in attendance at that meeting. The evidence as a whole reveals that a group of Tiwi Islanders opposed to the pipeline have conducted meetings in the absence of others known to be against it. The weight of evidence as a whole is that Simon Munkara did not include persons known to have cultural authority in the preparation and commencement of these proceedings more generally. I do not accept his explanation that he did not consult with others because he was rushed.
[990] Simon Munkara otherwise presented in large part as a guarded witnesses, both in his outward demeanour and in the content of his responses. I considered him to be non-responsive at times when the questions being put to him were straightforward and capable of clear answers. I did not consider the non-responsiveness could be explained by a lack of proficiency in English. The Court provided Simon Munkara with guidance on the importance of giving frank responses to questions that could readily be understood. The Court explained that he could take issue with a question or give a reason for not wanting to respond to it. Notwithstanding that guidance, he continued to convey the impression that his answers were given with an eye to the consequences that might flow for his overall case.
[991] Simon Munkara was otherwise defensive at times, accusing Counsel of trying to trick him. That occurred with other witnesses too, but in the context of the cross-examination as a whole it has contributed to my view that he was focussed on a case that the applicants wished to present rather than on providing direct answers to simple questions.
[992] These observations do not cause me to discount the whole of Simon Munkara’s testimony. However, they do diminish the weight of his evidence relative to that given by others. They are one factor (among several others) affecting my consideration of the evidence as a whole.
[993] Simon Munkara, among some other witnesses, did not describe himself as a leader. The applicants instead placed reliance on the circumstance that he received knowledge from his father Danny Munkara, who was considered (by all who were asked) to be a senior Elder with cultural authority in the Jikilaruwu clan. Danny Munkara’s absence as a witness was explained due to his age and ill health, and I do not draw any inference of the kind discussed in Jones v Dunkel (1959) 101 CLR 298 in relation to him. However, it was not put to any of Santos’ witnesses that their asserted knowledge was sourced from anybody other than their own Elders, going back in time. Accordingly Simon Munkara’s asserted knowledge has its source in the same generation of Elders of all other witnesses.
[994] Secondly, as will be explained later in these reasons, a number of the applicants’ witnesses participated in one or both of the May Corrigan Meeting and the June O’Leary Workshop. I have made findings about things said and done on those occasions in Part V of these reasons. They include a finding that things were said at the May Corrigan Meeting that, considered as a whole, amounted to a form of subtle coaching of those in attendance to tell their cultural stories in a way that would extend them to the area of the pipeline. That is not a determinative feature of the evidence, but it is a circumstance that cannot be ignored. In addition, I have found that at the June O’Leary Workshop the attendees were prompted in a more blatant fashion to participate in a cultural mapping process of a kind that on another occasion had helped to stop a petroleum development. That process has undermined my confidence in accounts given by the participants at and following the Workshop. Their witness statements and oral evidence fall temporally into that category. It enhances the need to find evidence of statements they made prior to those events, referred to by the parties as “pre-dispute” statements. I do give some weight to prior consistent statements recorded by Dr Corrigan at times between then and May 2023.
…
Events at the June O’Leary Workshop
[1143] The evidence demonstrates that Dr O’Leary was engaged to assist the EDO’s clients and that he appreciated that those clients were Tiwi Islanders who wanted to stop the pipeline.
[1144] Minutes were taken of a meeting at the commencement of the June O’Leary Workshop. The minutes show that eight Tiwi Islanders attended, three of whom are witnesses in these proceedings. Two lawyers from the EDO were in attendance, including the same EDO Lawyer referred to earlier in these reasons.
[1145] At the beginning of the meeting, Dr O’Leary told the attendees about work that he had done in Arnhem Land in connection with land proposed for development by Woodside Petroleum. He said that he had a map of the sea bed with “really beautiful imagery of the seafloor” which showed two depressions, like holes, in the sea bed. He referred to a 92 year old Aboriginal Elder, Timmy Douglas, and went on:
I showed the picture of the two depressions that look just like waterholes, the size of swimming pools, all of the sudden Timmy Douglas started speaking in traditional English [sic]. I thought I offended him. Everyone else was talking intently about the picture. He was pointing at a photo on the wall of a kangaroo, they were saying half and half and were pointing at photo of kangaroo on the wall. Afterwards, one of the World Heritage people who is Aboriginal, I asked her to explain what happened. She said Timmy recognized the holes from the kangaroo songline. Because it was description of song-line was so detailed and the map was so detailed, he was able to match the songline to the place.
…
With the map, I could say the kangaroo songline was part of the map and I could say this is important and Woodside can’t touch it.
[1146] In response, a Tiwi Islander attendee said “Well we gotta do this”.
[1147] The minutes then record Dr O’Leary referring to a map. The following exchange occurred:
Dr O’Leary: Brought out closer map. This is very deep, during ice age. This place was like huge, think of Apsley Strait and it was just fresh water. It kind of comes up like a tongue that forms just like that, it continues all the way out. Pointing at freshwater lake going to ocean. But this was at ice age. If you go further out in time, it goes further. It was big big lake. This map was before the ice age. You can see the lake comes out like this like a big tongue.
EDO Lawyer: When Mick was saying like tongue, I was thinking like Ampiji.
[1148] In an afternoon session of the meeting, Dr O’Leary again told the story of Timmy Douglas. He referred to Timmy Douglas who “instantly recognized” a now submerged waterhole on a map from his memory and connecting it with a kangaroo song line.
[1149] Dr O’Leary described the Ancient Lake off Cape Fourcroy as “massive”. He said:
This one here, is like 8km long 2km wide 100m deep. This at the ice age, there would have been fresh water here under the worst drought. There always would have bene [sic] fresh water here. All year round. For thousands of years, even under the worst drought, always water there.
[1150] In cross-examination Dr O’Leary admitted that the words he had used at the morning session of the meeting about using the kangaroo Dreaming story and the map shown to Timmy Douglas to stop Woodside were not true. He said it had nothing to do with stopping Woodside. He said that he now regretted saying the words because they were incorrect. He admitted that the waterholes on the map shown to Timmy Douglas were not anywhere near a development contemplated by Woodside. The cross-examination continued:
Q: And do you recall that the mood of the meeting was that once you described what you had done for the people with the kangaroo song line and Woodside, that they were keen or wanted you to do the same for them so they could stop Barossa?
A: Sorry, I may have given the impression that the kangaroo song line had something to do with the Scarborough pipeline or Woodside. The truth is there is nothing to do — no relationship between the Scarborough development and these water holes or the kangaroo song line. Completely different things.
Q: Is your evidence, irrespective of what is the true position, that what you told the meeting that the kangaroo song line would stop Woodside?
A: I said that, but that is incorrect.
Q: What I’m asking you is did you understand — after you told the meeting that the kangaroo song line had been used to stop Woodside, did you understand that the meeting were keen for you to help them, with your mapping, stop Barossa?
A: Yes. So two things. The — I said could stop Woodside, again, which was an incorrect statement. And I get the — I get your assertion that, yes, it would have given that impression, and I regret saying that at the meeting.
[1151] That is a startling admission. Not only is it damaging to Dr O’Leary’s credit, it causes me to doubt his understanding of the obligations of an expert to remain impartial.
[1152] It may reasonably be inferred that the statement about Timmy Douglas and the untrue statement at the earlier mapping exercise which had been used to stop an earlier petroleum development could only have been deployed at the beginning of the June O’Leary Workshop to coach the attendees about what they might say in response to the maps of the submerged landscapes, so as to achieve their objective of stopping the pipeline. No other reasonable inference is available. None was offered by Dr O’Leary and he was not re-examined on the topic. Whether the EDO lawyers in attendance were aware of the untruthfulness of the statement is unknown to the Court and I make no finding about them in that respect.
[1153] Dr O’Leary’s admission was freely volunteered, such that he did not lie to the Court. But he did lie to the Tiwi Islanders, and I find that he did so because he wanted his “cultural mapping” exercise to be used in a way that would stop the pipeline. It is conduct far flung from proper scientific method, and falls short of an expert’s obligation to this Court.
Video evidence
[1154] It is apparent that the video recordings of events occurring at the June O’Leary Workshop are not a complete video record of everything that occurred there. Not all speakers in the videos are shown visually, and those who are shown are not named in the videos themselves. Some of them are recognisable as among the applicants or as witnesses for the applicants. The names of some of the participants can be found in footnotes to documents provided to Mr Lewis and Dr O’Leary, discussed earlier.
[1155] There are two aspects of the video evidence giving rise to further concerns about the integrity of the cultural mapping process. I have considered them as a whole and summarise some of them below.
[1156] My overall observation is that they confirm that the Tiwi Islanders engaged with the map depicting their islands as they exist today. They repeatedly pointed to places on the land and on the coast that were of significance to them and to the area around the islands as though it were the sea in the present day. In Video 8, Dr O’Leary is heard to say that the map depicts a time 50,000 to 30,000 years ago. But the Tiwi informants plainly did not appreciate that when interacting with it. That is hardly surprising given that the Tiwi Islands in today’s form are shown on the map in bright green on the dull-coloured background.
[1157] In Video 15, Dr O’Leary indicates the large area in which his freshwater lake is depicted, referring to it being “around the island”. That of itself is misleading, given that the islands did not exist as islands when the lake existed as a lake (if indeed it did exist). The informant then indicates broadly around the islands and says that there is Yiminga there “and they all have song lines”. Dr O’Leary responds, “It’s amazing to me that what you describe from your memory is like what’s on the maps you know, .. you speak this story and I can see the story on the map, you know, this is amazing”.
[1158] Also in Video 15, an informant refers to a sacred site at Rocky Point, which Dr O’Leary marks on the map. The informant refers to Wiyapurali and refers to the Crocodile Man song line being there. Dr O’Leary writes “Crocodile Man song line” on the map and draws a mark off the coast. He then refers to the Ancient Lake, circling it with his pencil, and says “this is the fork tongue here?”, forking his fingers over the lake. The marks made in this video are those depicted in the second image of Figure 7 reproduced in O’Leary 1 and extracted at [1075] of these reasons (Map 5).
[1159] In Video 12 an informant indicates to the Ancient Lake and refers to Mother Ampiji being there as the caretaker of the sea. She then refers to a cave at Cape Fourcroy and a crocodile, indicating him going into the sea from that point. The informant is not told that Cape Fourcroy did not exist at the time depicted in the map.
[1160] In Video 11 an informant points to Rocky Point and says that an Ampiji lives there. She confirms that the Ampiji lives “in the land” and “in the fresh water”. She says “fresh water, fresh water, Ampiji”.
[1161] In Video 26 an informant tells the story of a being that created the islands, indicating the Aspley Strait. She describes that being as living in Lake Mungatuwu, but traveling around the islands. She refers to that being as the caretaker of the sea. The informant is not told that in the time depicted in the map, the Tiwi Islands did not exist as islands. Video 34 has similar content.
[1162] Video 39 depicts the EDO lawyer interacting with an informant over a map. The informant says “in the sea”. The lawyer says “comes out from Rocky point, and goes to the sea”. As she speaks, the lawyer draws a line westward from a point on the north west coast of Bathurst Island, ending the line in the Ancient Lake. The informant says nothing to the lawyer about where that line should begin or (critically) where it should end. The lawyer says “to the sea, so that’s where the sea started”. The lawyer then reinforces the line with her pen, and asks, “What’s the song line? What is that? What’s that story?” The line drawn by the EDO lawyer is the upper horizontal line shown in the first image in Figure 7 of O’Leary 1, extracted at [1070] of these reasons (Map 4).
[1163] In Video 41 an informant points out Lake Mungatuwu to the EDO lawyer. The informant says “so I think that is the mother”, pointing to both the Ancient Lake and Lake Mungatuwu. A person outside of the frame says “it is all connected around”. The EDO lawyer says “yeah, because that fresh water is coming all the way around”, indicating a circle around the island, starting at the Ancient Lake. Dr O’Leary is present for that exchange but says nothing about the existence of a freshwater source that encircles the whole of the islands as they exist today. He says nothing about the Tiwi Islands not existing at all at the time that the Ancient Lake existed. The opinions in O’Leary 1 contain no conclusion that there exists a freshwater channel or other system encircling the area where the Tiwi Islands are today.
[1164] In other videos, an informant indicates the Ancient Lake on the map and refers to a Mother Ampiji being there. There are references that the Mother Ampiji “maybe” connected with a “main Ampiji” at Lake Mungatuwu: Video 13. There are numerous references or gestures indicating the Mother Ampiji living in the Ancient Lake and travelling around the “waters” surrounding the “islands” depicted in the map.
[1165] In many of the videos, the speaker is a person I recognise to be Carol Puruntatameri. She is the only informant in five of the videos, and also appears in a further 25.
[1166] Considered in the context of the things said at the earlier meeting, the video evidence does not satisfy me that the cultural mapping exercise was “indigenous led”.
[1167] In addition, Dr O’Leary is shown in some instances to encourage and hint at the informants, indicating a fork with his fingers and expressing excitement at what he referred to as “memories” as though “memories” were being prompted by the exercise. Whether intended or not, the forked fingers on an objective measure are suggestive of a snake and reinforced the EDO lawyer’s statement at the workshop that the forked tongue brought Ampiji to her mind. That was the first mention of Ampiji at the workshop. Whether careless or deliberate, the association of the geological forked tongue and Ampiji was plainly suggested.
[1168] Most concerningly, I consider that Video 39 depicts what could only be described as the EDO lawyer drawing on the map in a way that could not on any reasonable view truthfully reflect what the Tiwi informant had said. In addition, the EDO lawyer stated, “that’s where the sea starts”. That is a curious statement, given that the map is intended to reflect a territorial landscape within which there was a freshwater lake. At the time that the sea “started there” it could not be a freshwater source. The informant said “into the sea” which could only be understood as something going into the sea from the island coast. The EDO lawyer created her own marking on the map and then reinforced it, ending the line in what is then referred to in a document drafted by the EDO as the “sacred freshwater source”. That line now appears in the so-called cultural map and is presented to this Court as evidence in Dr O’Leary’s Figure 7A (Map 4) above.
[1169] The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this Court via an expert report, and I so find.
[1170] The EDO lawyer was not called to give evidence. That does not preclude the Court from acting on the evidence before it, given that the applicants’ onus includes an onus to persuade the Court that the cultural mapping exercise is scientifically sound and otherwise reliable. The content of Video 39 alone is sufficient to reduce the integrity and hence the reliability of the cultural mapping exercise to nought.
…
Synthesised narratives
[1178] A number of observations may be made about the narratives contained in this document created by the EDO.
[1179] First, my conclusions about the conduct of the EDO lawyer who attended the June O’Leary Workshop cause me to approach this document with extreme caution. Ordinarily the Court may proceed on an assumption that documents of this kind are prepared by legal practitioners who fairly understand the importance of ensuring the accuracy of documents created for the purposes of legal proceedings, including documents prepared for the purposes of briefing independent experts. Regrettably, in light of my earlier findings, that assumption cannot be made in connection with this document. The Synthesised Narratives include a rendition of an Ampiji that resides at Rocky Point that has connections with the so-called sacred freshwater source, that Ampiji in turn having connections with the Mother Ampiji residing in the same source. A part of that narrative appears to be based on the EDO lawyer’s own horizontal line drawn on the map, distorting and misrepresenting what the indigenous informant had said.
[1180] Second, the manner in which the document was prepared is not the subject of discrete evidence. The document does not contain detailed annotations or cross-references to the specific source material upon which the components of each narrative are based. I am concerned that each narrative is no more than a mosaic formed from snippets of sentences said by separate informants, arranged together so as to be presented as a coherent singular narrative shared collectively by Tiwi Islanders or at least a sub-community of more than one of them. The video evidence of the cultural mapping exercise does assuage that concern. The concern is reinforced by the Ampiji narrative which appears to draw on things said to Dr Corrigan about calling out to Ampiji. That information is then connected to “Mother Ampiji” residing in the so-called sacred freshwater source. Nothing of the kind was said to Dr Corrigan at a time predating the narratives.
[1181] Additional evidence is needed to satisfy me that the document is accurate and reliable. Absent that evidence, I conclude that the flaws in the cultural mapping exercise identified above are flaws that contaminate this document and so render it forensically useless.
[1182] Several of the narratives appear to be based solely on the material contained in the 2023 Marie Munkara Narratives and its reliability must be questioned for the same reasons given in relation to that document.
[1183] In addition, on the lay evidence adduced in this proceeding, I am not satisfied that there was any real effort to ensure that the June O’Leary Workshop was attended by a range of persons having cultural authority from the Jikilaruwu, Munupi and Malawu clans irrespective of any view they might have had about the pipeline. The synthesised narratives do not disclose even the existence of different and dissenting views held by other persons having cultural authority within the same clans with respect to the same underlying song lines, and yet they are put forward as communal beliefs of those clans.
…
(emphasis added)
The media reported on 14 March 2024, that the solicitors for the Applicants in the above proceeding – the Environmental Defenders Organisation – had commissioned senior counsel and solicitors to engage in and report on a review of their processes for marshalling evidence in the conduct of like cases. With respect, the EDO is to be commended for taking such course given her Honour’s above findings.
In two recent decisions of the District Court of New South Wales – each decided upon an application for a costs’ certificate by an acquitted accused – the learned judges made comments concerning the need for a prosecutor to exercise an independent subjective discretion as to whether or not an indictment ought be preferred, initiated and proceeded with to trial, having regard to prospects. The decisions are Martinez v R [2023] NSWDC 552 – per Newlinds SC DCJ – and the second is R v Smith (a pseudonym) [2024] NSWDC 41 – per Whitford SC DCJ.
Following delivery of the decision in Martinez, the Office of the Director of Public Prosecutions advised that a complaint would be made about Newlinds DCJ to the NSW Judicial Commission. In that regard see also the item further below in this section of Hearsay concerning Acting Justice Lazry of the Supreme Court of Victoria against whom a complaint was made by the ODPP of Victoria after a decision of his Honour staying prosecution upon an indictment.
In Martinez the reasons included the following:
JUDGMENT: EX TEMPORE
HIS HONOUR: I am going to grant a certificate, and I am in a position to give reasons now, so I will do that.
Introduction
This is an application for a certificate for costs arising from criminal proceedings pursuant to s 2 of the Costs in Criminal Cases Act1967 (NSW). The relevant criminal proceedings were constituted by an indictment alleging four counts of sexual intercourse without consent, with knowledge that there was no consent, in breach of s 61I of the Crimes Act1900 (NSW).
The Applicant was arrested on 3 June 2021 and was refused bail. Ultimately by order of the Supreme Court of New South Wales they were granted bail on 17 February 2022 after they spent approximately 8 months in custody. In my judgment they did not commit any crime and should never have been prosecuted. This prosecution is a miscarriage of justice. That has occurred largely as a consequence of the prosecutor – relevantly the Office of the Director of Public Prosecutions either not properly considering its power to prosecute, or if it did, by wholly misapplying the law. On any basis the decision to prosecute and continue to prosecute was legally wrong.
…
It may seem strange that in a trial where the Applicant has been so comprehensively acquitted by the jury that I consider the trial was unfair to them, but I am sorry to say that I do. I do think that the trial was unfair because the Applicant was not able to put before the jury the true history of the Complainant’s complaints thus putting into context all of her evidence and the circumstances of her conduct before the jury. If the jury had known the full picture of the Complainant’s history of accusing men of rape in similar circumstances, the time of deliberation would have been measured in minutes.
However, my point is not that. My point is, if it be right that the evidence was properly excluded, and if it be right that there was not sufficient circumstances to justify a permanent stay, then the only “check and balance” left in the system to prevent an injustice was prosecutorial discretion. That discretion was sadly lacking here. I do not believe it was properly considered at all. Rather, I think the prosecution took the lazy and perhaps politically expedient course of identifying that the Complainant alleged she had been sexually assaulted and without properly considering the question of whether there was any evidence to support that allegation, just prosecuted so as to let the jury decide.
…
Most importantly, I do wish to record that I am left with a deep level of concern that there is some sort of unwritten policy or expectation in place in the Office of the Director of Public Prosecutions of this State to the effect that if any person alleges that they have been the subject of some sort of sexual assault then that case is prosecuted without a sensible and rational interrogation of that complainant so as to at least be satisfied that they have a reasonable basis for making that allegation, which would include to at least being satisfied that the complainant has a correct understanding of the legal definition of sexual assault or sexual intercourse without consent.
…
It seems to me that if those who had made the decision to commence these proceedings had fully understood the Complainant’s idiosyncratic and wrongheaded application of the law to the facts that she understood them to be, then that person or persons would have given absolutely no weight to the fact that she was alleging sexual misconduct, but rather would have judged the matter on the objective evidence such as it was which should have led to a very different conclusion. If no effort was made to work that out, then the prosecutor failed to perform the important role of filtering hopeless cases out of the system and has thus been the primary cause of this Applicant spending 8 months in gaol for a crime he did not commit.
On 30 June 2022, Simon Smith* (see [84] below) was committed for trial in this Court. He was arraigned in the Court on 29 July 2022 and entered pleas of not guilty to two counts of sexual assault charged on an indictment of that date.
From the outset, Mr Smith maintained that the issue at trial was to be consent. This was revealed to the prosecution by way of case management obligations in the Local Court, as well as in this court.
The trial was initially listed to commence in July 2023. Due to counsel for Mr Smith contracting COVID-19, as well as the unavailability of judges at the time, the trial was adjourned to 19 February 2024.
On 19 February 2024 a fresh Indictment was presented and Mr Smith was arraigned and entered a plea of ‘not guilty’ to the sole count of sexual intercourse without consent, with knowledge that there was no consent, contrary to s 61I of the Crimes Act 1900 (NSW). A trial commenced on that day before me and a jury.
The jury retired to consider its verdict at 1:10 pm yesterday, 26 February 2024. A short time later, at 2 pm, I received a note indicating that the jury had reached a unanimous verdict. The jury found Mr Smith not guilty.
Pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW), an application is now brought on behalf of Mr Smith for a certificate which will enable an application to be made to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings.
…
During the hearing I made a number of observations to the Solicitor Advocate appearing on the instructions of the Director of Public Prosecutions, as to what I perceived as an apparent want of merit in the prosecution case. It was accepted by that advocate that the prosecution case was “not the strongest of matters”. That was delightfully understated, even at that juncture in the proceedings. An exchange between us at p 63 of the transcript on 20 February was in the following terms.
HIS HONOUR: Mr Borosh, it’s my understanding that this case bears a degree of similarity to another case with which Ms Orman-Hales might have some familiarity, a case which attracted some notoriety in the media and an adverse costs order before Christmas.
SOLICITOR ADVOCATE: Yes, your Honour.
HIS HONOUR: The similarity as I understand it extends to the identity of the toxicologist called by the prosecution.
SOLICITOR ADVOCATE: Yes, your Honour.
HIS HONOUR: Who I understand, gave evidence in that case in chief, to the effect that notwithstanding an alcoholic blackout, someone can function at a very high level and appear to all those around them to be fully functional. I anticipate she’d likely give the same evidence in this case.
SOLICITOR ADVOCATE: Yes, your Honour.
HIS HONOUR: On what basis would you sustain a conviction in a case like that?
SOLICITOR ADVOCATE: The prosecution says it is open to the jury to conclude either the complainant was asleep or unconscious or that it was apparent to the accused that the complainant was well affected by alcohol, and they could take that into account in assessing that she was not in a fit state to consent.
HIS HONOUR: You must have a very different conception of “beyond a reasonable doubt” to that which I hold, Mr Borosh.
SOLICITOR ADVOCATE: No, your Honour. I’m operating at the concept of prima facie case at this point. I accept, your Honour, that it may not be the strongest of matters. But it is fairly common for an alcohol-related matter.
HIS HONOUR: Difficult to accord it reasonable prospects of success, I would have thought. But others may have a different view.
SOLICITOR ADVOCATE: I understand what your Honour is saying.
HIS HONOUR: There’s a lot of public resources being devoted to it, Mr Borosh – and the time– and attention of a jury.
SOLICITOR ADVOCATE: I can’t comment on policy, your Honour.
The case to which I was referring in that exchange was the trial of Martinez which reached its conclusion in the costs judgment of his Honour Judge Newlinds SC (Martinez v Rex [2023] NSWDC 552). The similarities between that trial and this are substantial. On any reasonable view, the prosecution case in the present matter was even weaker than the one with which his Honour was concerned.
It is at least the recent experience of this Court that time and time again proceedings are brought without apparent regard to whether there might be reasonable prospects of securing a conviction. It is made plain in many of those cases, that they are brought, and maintained, on the instructions of “the Director’s chambers”, whatever the entity so described might embrace by way of decision-making, without apparent regard to any views which might be held by the person likely best placed to assess the strengths and weaknesses and merits otherwise of the prosecution, being the Solicitor Advocate or Crown Prosecutor, salaried or otherwise, briefed in the matter.
I make these observations for the purpose of endorsing some of the remarks of Newlinds SC DCJ in Martinez as to the difficulties to which this trend gives rise in the efficient conduct of the business of the Court and the problems generally to which it gives rise in the administration of criminal justice in this State.
His Honour’s observations warrant some express support, in my view, in circumstances where in the absence of clear recognition of a problem by judges, there is a substantial risk that it will go unremedied. Leaving aside any question of expression, lest it be thought that his Honour’s observations somehow represented idiosyncratic and unwarranted criticism of the conduct of matters before this Court, it seems to me important that the issues be exposed wherever they are encountered in individual cases.
There were two significant problems highlighted by his Honour.
The first concerns the intolerable conflict with which representatives appearing in trials are burdened, between their instructions on the one hand and their obligations to the Court and by extension to the administration of criminal justice generally on the other. Those representatives are, as his Honour remarked, professionally obliged to form their own individual, subjective views, as to whether proceedings should be commenced and continued, and have an obligation (regardless of instructions) not to commence or proceed with cases if they form the view that they have no prospects of success.
The second relates to the fact that for all practical purposes prosecutorial discretion is, in the majority of cases, the sole “check and balance”, as his Honour described it, in ensuring that scarce public resources are not needlessly devoted to futile prosecutions. Far too frequently, not just in this case, or in the case of Martinez, but also in numerous others, including some that have been the subject of reported public and private comment elsewhere, one cannot help but conclude that any reliance upon the Director’s own published guidelines has been abandoned, or at least abandoned in some categories of case, in favour of simply letting a jury (or a judge sitting alone) decide the merits of a case, without any professional examination of either the reasonable prospects of securing a conviction or the public interest in pursuing the prosecution.
The Court’s accumulating experience suggests there was nothing frivolous, nor indeed unique, about the deep level of concern expressed by Newlinds SC DCJ that there has developed within the Office of the Director of Public Prosecutions of this State some sort of unwritten policy or expectation to the effect that certain categories of case are now prosecuted without, or perhaps in spite of, a rational, professional, interrogation of the merits of the case and the prospect of securing a conviction. I share that concern. The concluding remark in the passage from the transcript in this case which I have earlier recited (at paragraph [66] above), offers some implicit support for that conclusion. If that conclusion is correct, it is a matter of profound concern for the administration of criminal justice in NSW. There is something disturbingly Orwellian, even surreal, about a significant public institution publishing guidelines, expressed to transparently reflect the general principles according to which it is said to operate in its core function, only then to operate in that core function by reference to opaque, even secret, policies which appear to be dissociated from, and to undermine, the published guidelines.
The expense of a criminal trial, not to mention the time which members of the community are called upon to devote to it as jurors, cannot be overstated. A criminal trial demands the expenditure of an enormous amount of predominantly public funds. Furthermore, each meritless proceeding that is conducted delays the resolution of other matters with a more worthy claim on that public expense and the devotion of the time of the Court and members of the community and the legal profession.
It also should not be overlooked that the only experience many community members have of the criminal justice system is through serving as a juror. If they are called upon to spend days, sometimes even weeks, resolving a matter that is patently without merit, they leave with an unfortunate, to say the least, view of the criminal justice system. There is a real risk that the commencement and maintenance of cases that have no reasonable prospect of succeeding risks drawing the criminal justice system into disrepute.
There is also a risk of significant and inappropriate stress and disruption being caused to an accused, sometimes over a long period and even extending to a deprivation of liberty as occurred in Martinez, from the initiation and maintenance of prosecutions which have no merit.
Equally, perhaps in many cases more, significant, is the fact that the anxiety, stress, humiliation and distress that will frequently be associated with a complainant’s involvement in the criminal justice system can be profound. In many cases, that involvement necessarily will be sustained for long periods as a matter proceeds through the courts. Quite properly, in recent years much has been done to ameliorate the difficulties confronting complainants. The reality, however, is that there are limits to what can be done, if the conduct of a fair trial for persons accused of serious crimes is a consideration, as it must be. I do not think it is an overstatement to suggest that it is bordering on cruel to subject a complainant to the experience of a criminal trial, if a reasoned and objective professional assessment of the prospects of securing a conviction concludes that the prospects are less than reasonable.
For all these reasons, it seems to me that problems in the administration of criminal justice in the State, where they exist, need to be exposed. If judges remain silent in individual cases where a prosecution without reasonable prospects has been brought and maintained, then there is likely no prospect of a remedy for a problem that appears now to be endemic.
At the conclusion of all the evidence in the present case, indeed at the conclusion of the prosecution case (if not also earlier), my own view was that the only rational verdict that a jury could deliver was one of not guilty. Whilst there was evidence which might, conceivably and purely theoretically, support an inference in favour of proof of the two disputed elements, consent and knowledge, there was no rational basis for concluding that other rationally available inferences inconsistent with guilt were capable of being excluded on the evidence.
In all the circumstances, the fact that the prosecution was instituted, and maintained, either without any or any proper professional advertence to whether there existed reasonable prospects of securing a conviction, or in spite of such advertence, fortifies my conclusion that it is appropriate that a certificate issue. There is nothing about the case, in those circumstances, which warrants the exercise of a residual discretion against the grant of a certificate where the statutory test is otherwise satisfied.
Taking into account all of the circumstances that I have outlined I have decided that it is appropriate that I exercise the discretion in favour of the applicant and grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967.
I direct that the Applicant prepare a certificate, show it to the prosecutor, and send it to my chambers so that in due course it may issue.
*Where the allegations against him are not only unproven, but in my view unprovable, and in order to spare him further distress, embarrassment and humiliation than he may already have suffered on account of them, of my own motion, but with notice to the parties and an opportunity to make submissions, I propose to make a non-publication order protecting the accused’s identity. In my assessment the public maintenance and potential continued ventilation of those allegations through the publication of these reasons is liable to add to such distress and embarrassment as he likely already has suffered. Where those allegations are unprovable and were pursued in the circumstances I have outlined in these reasons, the circumstances are, or at least should in the ordinary course be, properly described as exceptional within the meaning of s 8(3) of the Court Suppression and Non-Publication Orders Act 2010. Accordingly, and additionally, I order that there be no publication of any information which might identify the applicant, for the reasons just expressed.
The Australian newspaper reported on 4 March 2024 a response by the ODPP following the decision in Smith:
NSW chief prosecutor Sally Dowling SC has cautioned her staff against running meritless rape cases and urged them to axe matters that have “questions of credibility and reliability”, as she comes under fire from multiple judges who claim her office prosecutes sexual assault cases that have no hope of securing a conviction.
The warning comes as a staff member from within Ms Dowling’s office told The Australian the judges were “correct” in their claims, blowing the whistle on a culture in which they said junior solicitors felt pressured to progress with unverifiable allegations.
The Australian revealed last week that a fifth judge had launched a critique on the Office of the Director of Public Prosecutions, saying that “time and time again” sexual assault proceedings were brought before the courts “without apparent regard to whether there might be reasonable prospects of securing a conviction.”
Judge Peter Whitford wrote in a costs judgment that “far too frequently” the ODPP abandoned its own guidelines on a worthy prosecution “in favour of simply letting a jury (or a judge sitting alone) decide the merits of a case, without any professional examination of either the reasonable prospects of securing a conviction or the public interest in pursuing the prosecution”.
In response to the judgment, Ms Dowling sent an all-staff email saying she expected workers to “continue applying the guidelines with due care and diligence at every stage”.
“You may be aware of recent judgments suggesting that the ODPP is bringing proceedings without proper regard to the merits of the case and the prospects of conviction,” she wrote in the email, obtained by The Australian.
“While I strongly reject such contentions, it is timely to remind lawyers of your obligations under the Prosecution Guidelines, particularly Chapter 1 ‘The decision to prosecute’.”
She proceeded to remind workers that the ODPP’s prosecution guidelines were “the only policy which determines whether a prosecution is initiated and maintained … Prosecutors are obligated to apply the guidelines in every case, regardless of the type of offending alleged.”
Ms Dowling also said matters should be discontinued “if, after critical engagement with the admissible evidence including questions of credibility and reliability, a view is formed that there are no reasonable prospects of conviction, or otherwise that the continuation of the prosecution is not in the public interest”.
“If such a view is reached at any stage following committal, a report should be prepared and submitted to the director’s chambers for consideration,” she wrote.
“I expect all ODPP staff and crown prosecutors to continue applying the guidelines with due care and diligence at every stage.”
As to the complaint against Newlinds DCJ previously announced by the ODPP as to be lodged following his decision in Martinez, Arthur Moses SC, a former President of the Bar Association of New South Wales, was quoted in the Australian newspaper on 9 March 2024:
“I am troubled as to whether the making of these type of complaints to the judicial commission may have a chilling effect on judicial officers expressing their concern about the conduct of cases before their court. If that happens, it would be most regrettable and would be contrary to the public interest. There needs to be transparency on why prosecutions fail and judges should not be cowered into silence if they have concerns about the conduct of prosecutions.” Moses says “on no view could it be said that any of these judges have engaged in conduct that falls within section 15 of the Judicial Officers Act. Judges are entitled to explain publicly their views and concerns in relation to the conduct of cases that come before her or him. That provides the judiciary with the opportunity to communicate with litigants and the public to explain what has occurred in the courtroom. This enhances public confidence in the administration of justice.” Moses is concerned that if judges don’t speak up about why prosecutions fail – where there is not enough evidence – “the public may gain a false impression that procedural safeguards which ensure a fair criminal trial should be eroded to make it easier for a prosecutor to secure convictions rather than focusing on whether it was proper in the first place for a person to be prosecuted”.
Queensland, at present, harbours no Judicial Commission. The Guidelines issued by the Queensland Director of Public Prosecutions under s 11(1)(a)(i) of the Director of Public Prosecutions Act 1984 (Qld) – in which the guidelines as to initiation and maintenance of prosecution are contained in clauses 4 and 5 thereof – may be found here.
As we approach the end of 2023, many of us – mentally – are still in June or July. Perhaps I speak only for the Hearsay editorial staff. Each quarterly issue of Hearsay rolls around with seemingly increasing rapidity. Happily – in this issue – we are blessed with excellent articles from near and far.
In this Issue 94, we mark the retirement of the Honourable Susan Kiefel AC KC from the High Court of Australia, and from her final role in that court as Chief Justice. A video of the High Court Ceremonial Sitting – recognising her Honour’s contribution – can be found in the lead article.
We include a speech, delivered recently by the Honourable Glen Williams AO KC, honouring the great Honourable David Jackson AM KC. Mr Williams spoke at the “David F Jackson Mooting Dinner” held at the University of Queensland. He focussed on the great advocate’s early life at the Bar, including at the time of the fire at the Old Supreme Court Building.
The newly adopted Judicial Code of Conduct for the US Supreme Court is included in this edition. The glaring absence of such a code was a matter of some consternation to his Honour Judge Michael Ponsor – a US federal judge – in his article published in the last Hearsay issue.
On that note, his Honour Judge Glen Cash KC writes of judicial bullying and asks: “Is this the last of the judicial bloodsports?” Like all bullying, judicial bullying of counsel – rare as it is – will not die out unless called out. The bravery of those who speak up should be applauded.
In “10 Minutes with …”, I speak with the Honourable George Brandis KC – former Commonwealth Attorney General and Australian High Commissioner to the United Kingdom – about the skills of a barrister being transmuted to politics and diplomacy.
Four leading members of the criminal bar pen an important piece concerning taking objections in criminal trials. It is compulsory reading for all counsel, in criminal and civil spaces. Their treatment of objection to undue judicial intervention in questioning witnesses reminded me of a now retired barrister acting for a plaintiff rising to deal with a judge eliciting evidence from the barrister’s witness: ‘If your Honour is asking that question on behalf of the defendant I object to it, and if on behalf of the plaintiff then I withdraw it!’
Those who have called, and now call, the Mackay bar home are celebrated in a piece by Paddy Cullinane KC. The article includes a great photo of the fabulous depression-era Mackay Court House designed by Queensland Chief Architect AB Leven. The building is still in use.
The book, opera and song reviews (and reprises), I hope, will entertain you.
There is much, much more in this festive offering, including Christmas dog Mintie in the Inter Alia section. I hope you can all take some time in the coming month to relax and have a read of what this issue offers.
I extend warm thanks and appreciation to the Bar Association’s Dianne Lyndon for her role – and creativity – in bringing together all issues of Hearsay this year. It would not exist without her. I extend thanks also to the Association’s President Damien O’Brien KC, Vice-President Cate Heyworth-Smith KC and the Chief Executive Officer Kelsey Rissman for their general encouragement, and support of our editorial independence.
Enjoy your break with family and friends. Best wishes from Deputy Editors John Meredith and Megan Brooks, Arts and Reviews Sub-Editor Stephen Keim KC and me.
Merry Christmas, and a happy, safe and propitious New Year!
Richard Douglas KC Editor
I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com).
The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au).
The sub-editor is Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book and podcast reviews.
Justice Sandra Day O’Connor – the first woman appointed to the United States Supreme Court – died on 1 December 2023.
In 1981 President Ronald Reagan nominated her for appointment, fulfilling a campaign promise to appoint the first woman justice to the Supreme Court. Her Honour was then an Appeal Court judge in Arizona. She was 51 years of age.
Justice Day O’Connor served on the Supreme Court for 24 years, retiring in 2006.
Politically – she was a moderate – if not a conservative.
Her three days of nomination testimony before the Senate Judiciary Committee in 1991 were interesting. In an opening statement she said:
I happily share the honour [of nomination] with millions of American women of yesterday and today whose abilities and conduct have given me this opportunity for service.
In her testimony she was taxed by members about her views on various aspects of the law. She refused to answer, responding only ‘it is something in which I will not engage’. In respect of abortion, however, she answered that, at the age of 51, she would not be faced with unintended pregnancy ‘so perhaps it is easy for me to speak’ and that she felt ‘an obligation to recognise that others have different views’.
The Senate approved her nomination by a vote of 99 to 0. She joined the Supreme Court, then headed by Chief Justice Warren Burger.
“On the bench during an argument session, she often asked the first question, and it was usually one to strike fear into the heart of even an experienced Supreme Court advocate …”
In her eulogy of Justice Day O’Connor in the New York Times, the eminent and influential Linda Greenhouse – who reported on the Supreme Court for the Times form 1978 to 2008 and is a prolific writer on legal issues – wrote:
Very little could happen without Justice O’Connor’s support when it came to the polarizing issues on the court’s docket, and the law regarding affirmative action, abortion, voting rights, religion, federalism, sex discrimination and other hot-button subjects was basically what Sandra Day O’Connor thought it should be.
That the middle ground she looked for tended to be the public’s preferred place as well was no coincidence, given the close attention Justice O’Connor paid to current events and the public mood. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus,” she wrote in “The Majesty of the Law: Reflections of a Supreme Court Justice,” a collection of her essays published in 2003.
…
“It would be important”, she said, “to maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance.” Speaking at the groundbreaking for a new building at New York University School of Law in Manhattan, she added: “And in the years to come, it will become clear that the need for lawyers does not diminish in times of crisis; it only increases.”
…
On the bench during an argument session, she often asked the first question, and it was usually one to strike fear into the heart of even an experienced Supreme Court advocate: Is your case properly in this court? Why shouldn’t we dismiss it as moot? What gives your client standing?
“The Route to success in arguing a case before Justice Day O’Connor lay not in invoking legal doctrine or bright-line rules, but in marshalling the facts to demonstrate a decision’s potential impact”
Carter Phillips, a lawyer who argued dozens of cases before Justice O’Connor, once said that he barely bothered to prepare openings for his arguments because he knew that from the start he would be batting back questions from Justice O’Connor. In his first argument after she retired, he recalled, he was met with silence from the justices and had to scramble to think of what to say during the opening minutes of his allotted time.
The route to success in arguing a case before Justice O’Connor lay not in invoking legal doctrine or bright-line rules, but in marshaling the facts to demonstrate a decision’s potential impact. Justice Anthony M. Kennedy described her with admiration as a pragmatist, which he defined as “paying attention to real-world consequences.” Her jurisprudence, Justice Kennedy wrote in a tribute published after her retirement, was “grounded in real experience.”
Vale Sandra Day O’Connor.
For those with a subscription to the New York Times, see link to article and 2008 interview with Justice Day O’Connor – published after her death (and the writer found it inspiring).
See also below in ‘Reviews and the Arts’ the book review – by Matthew Hickey – of ‘First – Sandra Day O’Connor’.
Lewis Allan Reed (1942 – 2013) was an American songwriter and musician. Prior to his long solo career, he was the principal songwriter, guitarist and singer for the rock band ‘The Velvet Underground’, which group – well after its demise – was characterised as one of the progenitors of underground and alternative rock music.
Reed was a poet and a musician. His poetry is published. As a singer he harboured a deadpan voice. His songs, and performance, however, were – and remain – haunting and listenable. With few exceptions (eg ‘Perfect Day’) the theme of many of his songs was that of decadence, drug addiction, domestic violence, adultery and prostitution. His best known single was ‘Walk on the Wild Side’ which – according to his Wikipedia entry – was:
‘a salute to the misfits and hustlers who once surrounded Andy Warhol in the late 1960s and appeared in his films. Each of the songs’ five verses describes a person who had been a fixture at Warhol’s ‘The Factory’ during the mid to late 1960s: (1) Holly Woodlawn, (2) Candy Darling, (3) ‘Little Jo’ Dallesandro, (4) ‘Sugar Plum Fairy’ Joe Campbell and (5) Jackie Curtis’.
That song – see the link below – was from his second solo album ‘Transformer’, which was released just over 50 years ago. It was co-produced by David Bowie, no less, and released as a double A-side with the song ‘Perfect Day’.
While the lyrics of the song canvassed taboo topics at the time such as transgender people, drugs, male prostitution and oral sex – and included intros to supporting African-American singers with the language ‘… and the coloured girls go doop de doop …’, – it largely avoided the clutches of radio censorship in the US, and elsewhere.
For those unfamiliar with the song, listen to it once – perhaps twice – and probably you will be hooked. It is a simple chord progression alternating between C-major and F-major. The song is noteworthy for its twin ascending and descending portamento baselines. The baritone saxophone solo in the fade out of the song is memorable, if not haunting.
In 2010 ‘Rolling Stone’ magazine ranked ‘Walk on the Wild Side’ as the 223rd greatest song of all time.
Upon his death in 2013, Luc Sante wrote in ‘The New Yorker’ magazine:
The least you could say about Reed is that he was complicated. He was lyrical and crass, empathetic and narcissistic, feminine and masculine, a gawky adolescent and an old soak, a regular guy and a wilful deviant, and artisan and a vandal. As a teenager he was administered electroshock, intended to cure him of either homosexuality or generalized waywardness, depending on which interviews you read.
In the anthology ‘No One Waved Goodbye – a Causality Report on Rock and Roll’ – compiled in 1971 by Robert Somma’ – Reed wrote:
‘It simply requires a very secure ego to allow yourself to be loved for what you do rather than who you are, and an even larger one to realise you are what you do. The singer has a soul but feels he isn’t loved off stage, or, perhaps worse, feels he only shines onstage and off is wilted, a shell as common as the garden gardenia. But we are all as common as snowflakes aren’t we?
Much media commentary has ensued in the two weeks prior to publication of this issue concerning the proposal by the Tasmanian Government to enact special legislation which would have the impact of suspending Justice Gregory Geason – a judge of the Supreme Court of Tasmania – from sitting as a judge. Justice Geason is the subject of charges returnable in the Magistrates Court – to which he has pleaded not guilty – of common assault and emotional abuse respectively.
The Australian Judicial Officers Association (AJOA) – a leading voluntary association of serving and retired judges and magistrates drawn from jurisdictions across Australia – has issued a public statement critical of the proposed legislation.
The press release by the AJOAis dated 8 December 2023, and is under the hand of Justice Michael Walton, the AJOA President.
After noting that Justice Geason was not a member of the AJOA, Justice Walton (inter alia) wrote:
The AJOA does not seek to comment on the charges brought against Justice Geason, other than to note that, like the rest of the community, judges are subject to the law, including the presumption of innocence.
The AJOA is, however, very concerned about the manner in which the Tasmanian government has proposed to respond to the situation which has arisen in relation to Justice Geason.
The AJOA supports the establishment of procedures and bodies to receive and determine complaints made about the conduct of judges. Most states, but not Tasmania, already have such bodies. The urgent recall of the Tasmanian Parliament proposed by the Attorney-General is not, however, for the purpose of considering legislation to establish an equivalent body in Tasmania, but to pass legislation directed only at Justice Geason.
Judges of the Supreme Court of Tasmania may only be suspended or removed from office upon the address of both Houses of Parliament. It is therefore open to Parliament to make enquiries into the conduct or behaviour of a judge to the extent that it is thought that their conduct or behaviour might render them unsuitable to continue in office. Any such enquiries must, however, be formulated so as not to infringe legal principles, including the separation of powers between the legislature, the executive and the judiciary.
The AJOA has serious concerns that the legislation proposed to facilitate an enquiry into Justice Geason’s conduct and behaviour, the Supreme Court (Parliamentary Commission of Inquiry) Bill 2023, does not meet these essential standards in certain key respects.
If enacted, s 17(1) of the Supreme Court (Parliamentary Commission of Inquiry) Bill 2023 would give the Minister for Justice the power to suspend Justice Geason in certain circumstances, including where he is charged with an offence that is punishable by imprisonment for a term of 12 months or more. The charges brought against Justice Geason are of this type. The Minister is also given power to specify the terms and conditions in relation to the suspension and to lift the suspension at any time (s 17(3)). These provisions, if enacted, would constitute a flagrant interference by the executive with the independence of the judiciary.
Section 6(2) of the Supreme Court (Parliamentary Commission of Inquiry) Bill 2023 appears to abrogate all vital and long-established common law privileges, including legal professional privilege. The Commission of Inquiry into Justice Geason would be empowered to conduct its inquiry and obtain information ‘in any manner it considers appropriate’, and would not be restricted by law or by any privilege from ‘reviewing records, documents or information’. Further, s 7(5)(b) makes s 26 of the Commissions of Inquiry Act 1995 applicable. That provision abrogates privilege against self-incrimination.
The proposed Commission of Inquiry into Justice Geason would be required to complete its inquiry as soon as practicable (s 5(2)) and would be empowered to prepare an interim report (s 8(1)) containing ‘interim findings of fact’ upon which it could express its opinion about whether the Judge’s conduct and behaviour warrants his suspension or removal from office. The capacity of the Commission of Inquiry to express an opinion that a judicial officer should be removed from office based only upon ‘interim findings of fact’ contained in an interim report undermines the integrity of the proposed inquiry and offends against basic notions of fairness.
A number of recent decisions canvass the ethical obligations of, and constraints upon, lawyers who find themselves assisting an expert – sometimes at their request and sometimes by necessity to get the job done – draft their report for delivery in litigation.
In Landel Pty Ltd v Insurance Australia Limited [2021] QSC 247 (Landel),Dalton J (now Dalton JA) addressed the issue squarely with an adjuration that lawyers avoid “coaching” but otherwise be ready to assist in producing an intelligible, and admissible, report.
In New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim), the Full Court of the Federal Court – overturning the trial judge’s decision excluding an expert report for want of disclosure of lawyer involvement in drafting – observed that lawyer assistance may be acceptable in order to sensibly and reasonably achieve the outcome but ordinarily ought be disclosed on the face of the report or otherwise to the opposing party.
In Andrews v Kronospan Limited [2022] EWHC 479 (Andrews), Senior Master Fontaine of the UK Queen’s Bench Division – upon interlocutory application in a class action for injunctive relief and damages on account of alleged nuisance – ordered that the plaintiff class members be precluded from relying at trial upon evidence from their longstanding liability expert on account of the plaintiffs’ solicitors illicitly conferring with such expert in and about the drafting of the “joint statement” by the respective experts (referred to in Australia as a “conclave report”) in contravention of the procedural rules precluding expert – lawyer contact in that space.
In Landel, the court wrote concerning a poorly drafted report (at [19]-[20]:
…[W]hile lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. … In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this I would expect that attention to have come from both the solicitors and counsel briefed in the matter.
(emphasis added)
In New Aim, the five member appellate court wrote of the lawyer’s assistance afforded the expert in drafting the report:
[120] There is not one rule or practice which covers all experts or all situations. For example, in the typical case where medical opinion evidence is required, the medical expert would ordinarily draft his or her own report. The same is generally true of an expert valuer preparing a valuation or an accountant preparing a report about economic loss. There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner. Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties. Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is. Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.
[121] The primary judge observed at [76] that, if legal practitioners are involved in the drafting of an expert report that fact must be disclosed in the expert report. This may well be desirable, forensically or otherwise, but there is no legal obligation as such to do so. Whether there is an ethical obligation to do so depends on the particular circumstances.
[122] The primary judge also observed at [76] that all correspondence relating to the preparation of the report must be disclosed. Again, this might be desirable, but there is no legal obligation as such to do so. Again, whether there is an ethical obligation to do so depends on the particular circumstances.
[123] As to the primary judge’s observation that any oral advice conveyed by a legal practitioner to the expert should be documented and disclosed in the expert’s report, the legal or ethical necessity of this depends on all of the circumstances, including the nature of the advice conveyed to the expert and the relevance of it, if any, to the report or opinions expressed.
(emphasis added)
In Andrews, despite the expert having been engaged by the party for three years and at great expense, the court – confronted with clear evidence that the expert, Dr Gibson, had closely liaised with his briefing solicitors concerning the proposed content of a conclave report, in breach of the UK Practice Rules – ordered that the briefing party be precluded from reliance on Dr Gibson’s opinion.
The Uniform Civil Procedure Rules 1999 (Qld) – like their interstate analogues – similarly proscribe the conclaving expert and the original briefing solicitor or counsel conferring apropos of drafting of the experts’ joint conclave report: r 429A(2).
The court wrote:
[17] The Claimants having accepted that there have been “serious transgressions” of the relevant rules and practice directions, the issue for me to determine in this case is the sanction, if any, to be imposed, in accordance with guidance given in the authorities. I draw on the authorities for some assistance.
[18] The most recent decisions are those in BDW (see Paragraph 12 above)and Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC). In BDW the defendant’s expert in geotechnical engineering revealed in cross examination at trial that he had sent a first draft of the joint statement to the defendant’s solicitors and having received feedback, had made some changes to that draft as a result. The judge concluded (at [18]), that this was “a serious transgression” of CPR 35PD paragraph 9. The judge upheld the complaint that it was quite inappropriate for independent experts to seek input from their client’s solicitors into the substantive content of their joint statement or, for that matter, for the solicitors either to ask an expert to do so or to provide input if asked, save in the limited circumstances referred to in paragraph 13.6.3 of the TCC Guide. However he concluded that the expert was genuinely unaware that his conduct in this respect was inappropriate, and that there was no basis for considering that he had modified in any significant way the substance of his opinion as discussed with the other party’s expert. Accordingly no sanction was imposed on the expert.
[19] The judge stated at [18]:
“… it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements. To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see Part 35.12 (5)). There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts’ views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to reopen the discussion by this means.”
…
[22] Dana concerned very serious breach of the rules by the defendant’s three technical experts, which was not revealed in full until part way through the trial. This case involved the most serious behaviour by those experts, some of which had previously been the subject of an order granting relief from sanction subject to certain conditions. Not only did the judge find that the experts had not complied with those conditions, so that the defendant no longer had the court’s permission to rely on those experts, but she considered that the experts’ breaches of Part 35, 35PD and the CJC Guidance were so serious that they would be sufficient in themselves, without the breach of the conditions imposed by the previous order, to justify the refusal of the court to allow the defendant to rely on its technical experts (at [87]).
[23] Mrs Justice Joanna Smith referred in her judgment to two previous authorities at [66]-[68]:
“66.… I should reiterate what was said by Fraser J in Imperial Chemical Industries Ltd v Merit Merrill Technology Ltd [2018] EWHC 1577 at [237];
“The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explain[ed] to them by their instructing solicitors. This applies regardless of the amounts in stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR part 35, practice direction 35. Every expert should read it.”
67. Fraser J went on to set out some examples of the application of the well known principles in The Ikarian Reefer [1993] 2 Lloyds LR 68…. For present purposes, I note the first duty of an expert witness in a civil case as identified by Creswell J (at page 81) in The Ikarian Reefer:
“Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse vJordan [1981] 1 WLR 246 at 256, per Lord Wilberforce)”
[24] In my judgment the breaches of Rule 35, Practice Direction 35 and the CJC Guidance by both the Claimants’ solicitors and Dr Gibson in respect of appropriate conduct relating to the period of joint discussions preparatory to a joint statement being produced by experts, were more serious than in BDW, where there was only a single communication between the expert and the solicitors. Here there has been continuous contact, soliciting and provision of comments on the various progressive drafts of the joint statement, and provision of information on the joint discussions.
[25] The facts in Dana concerned a particularly egregious example of the most flagrant breaches by the experts concerned, where technical input was sought and provided to the experts by the party by whom they were instructed at every stage of the process, without the knowledge of the other party. The judge would clearly have had no other option but to refuse the defendant permission to rely on those experts. The facts in this case are not comparable to those in Dana, but the principles applied are equally relevant.
[26] In this case there were continuing discussions either by telephone or email or by written commentary on the draft joint statement in its various progressions from 26 May 2021 to June 2021 and recommencing in November 2021. Although the majority of the total of 68 comments noted on the draft joint statements relate to typographical and formatting issues, it is accepted by the Claimants there were at least 16 comments relating to “advice and suggestions as to content” in respect of the joint discussions/draft joint statement….
….
[32] The other factors which I consider should be taken into account in determining what the sanction should be are as follows:
i) The Claimants’ solicitors failure in November 2021 to reveal the full extent of their communications with Dr Gibson, the correspondence suggesting that the first contact had been on 17 November 2021, and their reluctance to do so until the persistence of the Defendant’s solicitors made it apparent that they would not let the issue go.
ii) The Claimants’ solicitors informed the Defendant’s solicitors that the only reason for that contact by Dr Gibson on 17 November was “to notify us that Dr Gibson/Dr Datson’s communications regarding their joint statement were being resumed” which was clearly only part of the picture. It is apparent, having seen Dr Gibson’s email of 18 November 2021 sending the next version of the draft joint statement [1/66] and the telephone attendance notes of 17 and 18 November 2021 [1/65, 67], that Dr Gibson was intending to resume his previous conduct in providing information about the joint discussions and soliciting assistance from the Claimant’s solicitors. I therefore do not consider that Ms Eedy’s [the Claimant’s solicitor’s] explanation as to why there was no disclosure of the previous discussions with Dr Gibson in May and June 2021 is satisfactory…
iii) Dr Gibson has not informed the court of the reason for his conduct, i.e. whether he was unaware of his obligations as an expert, and if so, why, or whether he was aware, in which case his reasons why he thought it appropriate to transgress those obligations.
iv) Dr Gibson produced his addendum report in July 2021 at a time when Dr Datson was unaware of his prior discussions with the Claimants’ solicitors.
[33] The factors in favour of permitting the Claimants to retain Dr Gibson as their expert are as follows:
i) Dr Gibson has been involved for over 3 years, and I am informed that some £255,000 have been spent on his fees.
ii) If permission to rely on Dr Gibson is revoked that would be a severe blow to the Claimants, a total of 159 households, all likely to be of modest means, who will be adversely affected by a decision to revoke permission.
iii) Even if the Claimants are permitted to rely on alternative expert evidence it will involve them in considerable additional costs and cause further delay to an already long running case.
iv) The Defendant is now aware of the extent of the discussions with Dr Gibson, so that the Defendant can cross examine Dr Gibson at trial in relation to whether he has changed his opinion as a result of those communications.
Conclusion
[34] Taking all the above factors into account, and applying the overriding objective, I have concluded that the serious transgressions by the Claimants’ solicitors and Dr Gibson are such that the court has no confidence in Dr Gibson’s ability to act in accordance with his obligations as an expert witness. The basis upon which the Claimants received permission to rely upon Dr Gibson as an expert witness, namely his duties under CPR 35.3, 35PD paras. 2.1 and 2.2, has been undermined. Accordingly I consider that it is appropriate, and not disproportionate, to revoke the Claimants’ permission to rely on his evidence. I consider that it must follow that permission to rely on Dr Gibson as a dust modelling expert is also revoked. The fact that this is group litigation does not dissuade me from that course. It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.
…
(emphasis and square brackets added)
The ethical lesson evident in these cases is that lawyers – counsel and solicitors – need be thoughtful and exercise clear appreciation of where the lines are drawn – by the ethics and procedural rules concerning expert witnesses – such that they do not approach, let alone cross such metaphorical lines. The price of not doing so could be either preclusion of their client being able to rely upon the elicited expert opinion, regulatory censure, or both.
Thanks to all who have contributed to this issue of your online journal Hearsay.
Hon Justice Martin Burns compliments the recent content of Hearsay in my “10 minutes with …” interview with him. His Honour was the first editor – for five years – of this online journal, so it is no faint praise. Thanks also to Justice Burns for furnishing tips concerning counsel needing to “listen” in cross-examination, and not unduly wasting court time, each for effective advocacy.
We could not resist leading this issue with the stunning painting of “HMS Beagle in the Galapagos” by maritime artist John Chancellor. We thank the UK based Chancellor family for permission to publish the same. The detail is extraordinary to behold, and you can click to obtain a larger version to fully appreciate the skill entailed.
The painting is a fitting companion to the article by Craig Coulsen, the featured article concerning the talented John Wickham, who successfully navigated the terrifying southern ocean for many years, and then a legal career as police magistrate at the Moreton Bay colony.
Chief Justice Helen Bowskill affords readers a practical summary of the law of contempt. So much is compulsory reading. Also featured is the first in a series of articles by Andrew Hoare for the assistance of the criminal bar. This starts with the basics, and while intended for a junior cohort, might we suggest that even those with more experience would profit from reading same.
US Federal Judge Michael Ponsor, of Massachusetts, has given us permission to publish his recent opinion piece in the New York Times concerning the US Supreme Court. This article too is compulsory reading for all interested in ensuring impartiality and integrity in the courts of a democratic society.
His Honour Judge Ken Barlow KC responds to an article about witness training and familiarisation contained in the last Hearsay issue. We encourage members and judges to write to Hearsay as his Honour has done. Topical discussion of critical issues of practice mitigates against complacency and sharpens our professional tools. The above interview with Justice Burns points this up.
It is the time of year when we exchange robes for tuxedos and gowns to attend the Annual Bar Dinner. Everyone looked fabulous; Hearsay has the photos to prove it and they are there for all to see. No-one ended up in the Brisbane River! The speech by the President, Damien O’Brien KC, is a good read for our collegiate profession.
The book and film reviews, as usual, are outstanding.
If there is some legal issue the reader thinks Hearsay ought highlight, please let us know. We are always open to suggestions.
Please forward to us, by Friday 17 November at the latest, contributions for issue 94, due for publication in mid-December 2023.
Enjoy!
Richard Douglas KC Editor
I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest(T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.
The Archibald Prize (Prize) is the most prestigious portrait prize in Australia. Since 2015 the Prize award has been $100,000.
The Prize was first awarded in 1921, upon a trust bequest under the will of JF Archibald, former editor of the Bulletin. It is administered by the Trustees of the Art Gallery of New South Wales, and is awarded for “the best portrait, preferentially of some man or woman distinguished in Art, Letters, Science or Politics, painted by an artist resident in Australia during the 12 months preceding the date fixed by the Trustees”. In addition to the selected winner, more recently there was inaugurated prizes for the “People’s Choice Award” and also the “Packing Room Prize”.
In 2021 the Prize celebrated its 100th anniversary. An exhibition of 100 artworks – Archie 100: A Century of the Archibald Prize – was curated by the Art Gallery of New South Wales and since has been travelling Australia, albeit shown (only) in regional galleries.
The exhibition is presently on show at the Home of the Arts (HOTA), at Bundall on the Gold Coast, which showing will conclude on 2 October 2023. It then moves for its final showing at the National Portrait Gallery, Canberra, from 20 October 2023 to 28 January 2024.
“Mr Joshua Smith” 1943
The Litigation
The Prize has not been without controversy, attracting litigation.
The most prominent of those was in 1944 concerning the 1943 winning portrait by William Dobell (later Sir William Dobell) titled “Mr Joshua Smith”, a portrait of a fellow artist. The Prize award was challenged by other artists upon an allegation it was a caricature rather than a portrait.
At the trial the claim was dismissed, but it is said that Dobell was so shattered by the challenge and the litigation, he retreated to painting landscapes.
The decision is Attorney-General (NSW) v Trustees of the Art Gallery of New South Wales and Dobell (1944) 62 WN(NSW) 212.
In his reasons, the trial judge, Justice Ernest Roper – construing the word “portrait” as used in Archibald’s will and applying such construction – wrote (at 215):
The picture in question is characterised by some startling exaggeration and distortion clearly intended by the artist, his technique being too brilliant to admit of any other conclusion. It bears, nevertheless, a strong degree of likeness to the subject and is, I think, undoubtedly, a pictorial representation of him. I find it a fact that it is a portrait within the meaning of the words in the will and consequently the trustees did not err in admitting it to the competition.
Whether as a work of art or a portrait it is good or bad, and whether limits of good taste imposed by the relationship of artist and sitter have been exceeded, are questions which I am not called upon to decide and as the expression of my opinions upon them could serve no useful purpose I refrain from expressing them. I mention those matters, however, because I think that the witnesses for the informant, whose competency to express opinions in the realm of art is very great, were led into expressing their opinions that the work was not a portrait because they held strong views against it upon those questions. They excluded the work from portraiture, in my opinion, because they have come to regard as essential to a portrait characteristics which, on a proper analysis of their opinions, are really only essential to what they consider to be good portraiture.
Garfield Barwick KC – as the later High Court of Australia Chief Justice then was – appeared as Senior Counsel, nominally for the plaintiff Attorney-General for the State of New South Wales, but in substance for the informant challenging artists, Edwards and Wolinski. Frank Kitto KC – also later to grace the High Court – led for the defendant trustees. Dwyer KC led for Dobell.
In his 1995 memoir – “A Radical Tory – Reflections and Recollections”, 1995, at page 48 – Barwick described the case among the top three of his public failures as an advocate, the top being his unsuccessful defence of the constitutional challenge to the Communist Party Dissolution Act 1950 (Cth): The Australian Communist Party v The Commonwealth (1951) 83 CLR 1.
The Exhibition
The writer attended the exhibition’s opening day at HOTA at 10.00am and was expecting – according to his usual swift passage through any art exhibition – to be away by 10.30am. So captivating was it, he stayed until midday.
The arrangement of the exhibition and the extensive narrative accompanying each artwork – artist and subject – is impressive. Dobell’s controversial portrait of Joshua Smith is not part of the exhibition but included is the 1944 Archibald Prize winning portrait by Smith himself, of the politician, JS Rosevear. Brett Whiteley‘s 1978 Prize winning work “Art, Life and the other thing” – also on show – comprises a stunning self-portrait of Whiteley holding a copy of Dobell’s “Joshua Smith”. Whiteley’s work is far more a caricature than Dobell’s work, no doubt reflecting modern art mores.
This exhibition is not to be missed.
The writer attended on a Saturday. It is advisable to book online but HOTA regulates entry to avoid over-crowding. Complimentary carparking for 3 hours is available but remember to enter your vehicle details in the parking machine nonetheless or you risk a fine.
The HOTA complex itself is an architecturally interesting building. It harbours different precincts which add to the emerging arts and cultural scene on the Gold Coast. In addition, Palette Restaurant, The Exhibitionist Bar and HOTA Café are excellent dining options. The viewing area on the top floor – providing expansive views of the Gold Coast coastal skyline to the north and east – is worth enjoying while attending.
Music diva, Tina Turner, died on 24 May 2023, aged 83. It is reported she had a stroke in recent years and was struggling with kidney disease and other illnesses. Prior to her death, she had lived in Küsnacht, Switzerland – near Zurich – for more than a decade, with her second husband, Erwin Bach, who she married in 2013. She became a Swiss citizen the same year.
But for those who have been living in a cave, it would be surprising if any person did not know of, and for the most part loved the music of Tina Turner. Writing an obituary in the “New York Times”, William Grimes aptly described her as:
…the earth-shaking singer whose rasping vocals, sexual magnetism and explosive energy made her an unforgettable live performer and one of the most successful recording artists of all time.
Even more importantly she was a survivor of spousal domestic violence and exploitation. She never sought to hide this, being a shining example of triumph over such utterly deplorable conduct.
Turner embarked on her over 60 year career while still at high school. She initially forged a performing – and ultimately personal – relationship with musician Ike Turner. Their ensemble was “The Ike and Tina Turner Review”, and they enjoyed their first top ten hit in 1971 with Turner’s vibrant version of the Credence Clearwater Revival piece “Proud Mary”. That won them a Grammy Award.
Turner’s abusive relationship with Ike Turner came to an end whilst she was in her thirties, and her career spiralled down.
In 1984 as a 45 year old, she revived her career, regaining her mojo, embarking upon a spectacularly successful solo career with the release of her album “Private Dancer”. That album included the classic “What’s love got to do with it”. At the 1985 Grammy Awards that song won 3 awards, for Record of the Year, Song of the Year and Best Female Pop Vocal Performance. The album went on to sell 5 million copies.
In 1998 Turner appeared at a concert before about 180,000 people at the Maracana Stadium in Rio de Janeiro, breaking a record for the largest paying audience for a solo artist. In 2021 she was inducted into the Rock and Roll Hall of Fame as a solo artist.
All this was a long way from her birth on 26 November 1939 as Anna Mae Bullock, in Brownsville, north-east of Memphis, Tennessee. Her early years were spent on the Poindexter farm in Nutbush, near Brownsville, where her father was a farm manager and she sang in the choir of the local Baptist Church.
Every reader, of whatever age, will – or should – remember dancing to Turner’s 1960’s hit “Nutbush”.
Turner had a close professional association with Australia in the 1980s and 1990s with her performances on ABC’s “Countdown” music segment and in promotion of the National Rugby League. Most will remember the NRL promotional campaigns of the early 1990s, viz “What You Get is What You See” and “Simply the Best”, each fronted by Turner.
Photographs and web links with this article will bring back fond memories for older readers, and entertain younger readers, women and men, even if you are not an NRL or Tina Turner tragic. See in particular her performance at the 1993 Grand Final, with the crowd singing along; it will make you feel good about life.
Turner outlived her two children. Ike Turner died in 2007.
A photo of Tina with the NSWRL Gold Coast Seagulls in 1990 at The Spit on the Gold Coast as part of the ‘Simply the Best’ campaign:
L to R: Phil Daley, Ben Gonzales, Billy Johnstone, Geoff Bagnall, Robert Simpkins, Keith Neller, Mark Gee, Mark Ross, Brett French, Clinton Mohr (a Brisbane solicitor), Scott Mieni, David Chapman, Paul Shaw.
A photo of Tina with the Brisbane Broncos after their win in 1993.
