Strickland on behalf of the Maduwongga Claim Group v State of Western Australia
[2023] FCA 270

In this case, the Court made observations regarding an expert witness whose acts and behaviour led to the finding that the expert evidence was unsatisfactory.

Background

This is a case for the recognition of native title in the Goldfields region of Western Australia brought by two applicants, the Maduwongga Claim Group and the Nyalpa Pirniku Claim Group.

The three active respondents in the matter disputed the Maduwongga claim on the grounds that there never was a Maduwongga group that acknowledged and observed its own traditional laws and customs on the subject land.

Expert Evidence

The Court heard evidence from two expert witnesses: Dr CM, an anthropologist and ethnohistorian who was called by the Maduwongga Claim Group. The other was Dr JM, an anthropologist who was called by the Nyalpa Pirniku Claim Group.

Jackson J found the evidence of Dr CM to be unreliable on the grounds that:

• she lacked a thorough grounding in the theoretical frameworks which had come to be accepted in the field given her place outside the mainstream of expertise in Australian Aboriginal anthropology;
• that lack of grounding meant that Dr CM’s interpretations of the data were idiosyncratic ones which were not informed by a reliable body of knowledge (citing HG v The Queen (1999) 197 CLR 414 at [58] ([42]); and
• the court was not satisfied that Dr CM had enough anthropological experience in Aboriginal societies in Australia to make the result of her models of marriage relationships reliable.

The Court found that Dr CM’s evidence was unsatisfactory because she did not present as a disinterested, objective witness who understood that her first duty was to the Court. Rather, she was partial and partisan. [144] The Court observed that under cross-examination Dr CM was:

• defensive, and at times agitated in the absence of any provocation by her cross-examiners;
• prone to defending positions well after they had been pushed to the point of implausibility. The Court said that Dr CM “readily and gratuitously slipped into advocacy intended to discredit Dr JM’s views” and was “reluctant to concede that different views were even open, or reasonable, let alone correct”;
• selective in twice misquoting a passage from an important piece of evidence; and
• quite ready to treat the work of a 20th century anthropologist on which she relied on quite heavily as unreliable when it contradicted the Maduwongga position. [145-148]

Furthermore, the lack of transparency in how Dr CM’s reports came to be produced undermined the Court’s confidence in the reliability of those reports and resonated with broader concerns about her partiality. While Dr CM’s first report identified some statements she was supposedly asked to address, her supplementary reports did not comply with r 23.13(1)(d) of the Federal Court Rules 2011 (Cth), which require an expert report to identify the questions put to the expert, and also do not comply with similar requirements in the Court’s Expert Evidence Practice Note (GPN-EXPT).  Also, the lack of any letter of instruction or other detail of the instructions given to Dr CM further reduced the weight to be given to her evidence (citing Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 at [319]‑[322], [325] (Katzmann J)). [152]

The Court put more weight on the evidence of Dr JM’s evidence where it was inconsistent with that of Dr CM. Jackson J was confident that Dr JM’s evidence on the role of anthropological expertise could assist the Court in its interpretation of primary ethnographic materials was “based on deep expertise”. His Honour stated:

“Unlike Dr [CM], [Dr JM] presented as a calm, measured witness throughout, with a firm grasp of the limitations of his role.”

Ultimately, the Court ruled that the applicant’s evidence did not establish there was ever any distinct body of Maduwongga laws and customs about rights and interests in land. The evidence given by Aboriginal people did not say much about those kinds of laws and customs at all. In the end it depended on the expert evidence of Dr CM, whose model of how rights and interests in land arose in the Maduwongga claim area was not convincing.

Key takeaways

• Experts must be qualified by the lawyers as having the right expertise for the matter at hand. The expert should have a thorough grounding in any relevant theoretical or technical frameworks, and their expertise should be informed by a reliable body of specialized knowledge.
• A failure to adduce a letter of instruction or any details of the instructions given to the expert may reduce the weight given to their evidence.
• Experts are not advocates for the party retaining them. The overriding duty to the court should be demonstrated by the expert in both their written report and during cross-examination. The conduct of the expert in the witness box will not go unnoticed by the court.