Underwood & Ors v Gayfer & Anor

[1999] WASCA 56

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appeal from Court of Petty Sessions
3. › Error of law
4. › Failure to give adequate reasons for decision
5. › Findings contrary to uncontradicted evidence
6. › Whether appellate court can make own findings of fact
7. › Retrial ordered
1. Aboriginal Law
2. › Native title
3. › Traditional fishing rights
4. › Claim to native title right to fish as defence to fisheries prosecution
5. › Whether Djugun and Yawuru were distinct groups or one community
6. › Evidence of Aboriginal witnesses and expert anthropologist
7. › Fisheries Act 1905 (WA), ss 9, 10, 11, 12(1)(b)
1. Evidence
2. › Expert evidence
3. › Anthropological evidence
4. › Published academic work tendered in cross-examination
5. › Whether Magistrate entitled to prefer published work over sworn expert evidence without adequate reasons

Quick Take

A Magistrate who rejects a native title defence based on a published academic work, in the face of uncontradicted sworn expert and lay evidence to the contrary, must give adequate reasons for doing so. Failure to explain why the expert evidence was rejected constitutes an error of law warranting the setting aside of convictions and a retrial. The appellate court cannot make its own findings of fact where credibility is in issue and the witnesses have not been seen.