Dhakiyarr's case

The Arnhem Land east coast near Yirrkala (NAA: A1500, K15844)

Dhakiyarr Wirrpanda was a Yolngu elder and leader whose country was in eastern Arnhem Land in the Northern Territory of Australia. In April 1934 he was taken into custody in Darwin and charged with the murder of police constable Albert McColl. After a controversial trial in the Northern Territory Supreme Court, Dhakiyarr was sentenced to death.

Dhakiyarr's case drew national and international attention to the treatment of Aboriginal people in Australia. His case was preceded and followed by years of debate about the sufferings of traditional Aboriginals, particularly in northern Australia. Because Dhakiyarr's conviction and sentence were in the Northern Territory, the appeal was to the High Court. This became the first case of an Aboriginal Australian heard in the High Court. The Court's decision overturning the jury's verdict and the judge's sentence affirmed the right of Aboriginal people to a fair trial in Australian courts.

The case, however, ended in tragedy for Dhakiyarr and his family. On 8 November 1934 the High Court directed that Dhakiyarr be released and returned to his country. Within 24 hours of his release from gaol Dhakiyarr vanished. No one knows what happened to him, but some believe he was murdered. Nearly 70 years later, in June 2003, the Wirrpanda family held a Wukidi or burial ceremony in Darwin, to liberate his spirit and cleanse those involved in his death. A Wukidi ceremony is part of Yolngu law, and resolves a conflict between tribes that have wronged each other.

The National Archives of Australia holds the records of a number of the Australian Government departments and officials involved in Dhakiyarr's case. They include the Department of the Interior, the Attorney-General's Department, the Prime Minister's Office and the High Court. Significantly, and this was a key issue in the appeal to the High Court, there is no accepted record of Dhakiyarr's telling of the events. However, the Wirrpanda family has provided the National Archives with their account from the story passed down through the generations of their family. We include it here in the People section.

Spearing and arrest

Map showing Aboriginal missions in the Northern Territory (NAA: A1200, L29020)

Trouble with trepangers

Long before Europeans came to Arnhem Land, the Yolngu had been involved in the trepang trade with Macassans from Indonesia. Trepang, also known as sea cucumber, is considered a delicacy by the Chinese, with whom the Macassans traded. Australian governments had put an end to the Macassan trade by the turn of the 20th century, but both European and Japanese fishermen continued to harvest and process trepang with the help of local Aboriginal people. Generally, relations between the trepangers and locals were amicable, but the introduction of cattle by European graziers to Arnhem Land had sparked conflict.

By 1931, parts of Arnhem Land were declared an Aboriginal reserve, and non-Aboriginal people had to get a permit to live and work there. A number of mission stations had been established on islands or on the Arnhem Land coast, and a few pastoral stations had come and gone. Nevertheless, in the early 1930s the only occupants of the interior of Arnhem Land were Aboriginals living fully traditional lives. Some had never seen a white person.

In September 1932 five Japanese trepangers, who entered the Aboriginal reserve without a permit, were killed at Caledon Bay in East Arnhem Land.

The spearing of Albert McColl

The Japanese government complained to the Australian government about the trepanger killings and, nearly a year later in June 1933, a police party from Darwin arrived in Dhakiyarr's country looking for suspects. The fishermen had been killed at Caledon Bay, but Dhakiyarr and his family encountered the police party on Woodah Island, about 80 kilometres to the south. Dhakiyarr did not welcome the presence of the white police on his land nor their treatment of his people. He speared one of them, Mounted Constable Albert McColl, to death.

Alarm and arrest

News of McColl's death reached Darwin in August 1933, causing many in the north to fear an Aboriginal uprising from which no whites in remote regions, not even missionaries, would be safe. News received in November 1933 of the killing of two white trepangers, Frank Traynor and William Fagan, further alarmed Northern Territory whites. The Northern Territory Administrator, RH Weddell, was sympathetic to a plan to 'teach the Blacks a lesson' and this led him to propose a large police expedition to bring back Aboriginal suspects.

But the possibility of indiscriminate shooting in Arnhem Land raised a hornets' nest of remonstrance by humanitarian and welfare groups, including cables from anthropologist Olive Pink and Archbishop Daniel Mannix. Even the Australian High Commissioner in London cabled to report concern in Britain. Their protests overflowed from the Department of the Interior to the Cabinet.

In the end no armed expedition of any kind was sent. Instead, and months later, a very small 'peace party' led by missionaries sailed to Caledon Bay to gain more information and, if possible, to bring both suspects and witnesses to Darwin.

In April 1934 the peace party's boat returned with 17 Yolngu men, including Dhakiyarr, but without eyewitnesses to the McColl killing. The missionaries had persuaded the Yolngu to voluntarily go to Darwin and wanted the men to be their guests in the mission house. It was a rather odd expectation since the men were suspects and soon to be charged with murder.

Not surprisingly, the police took no notice of the missionaries' protest. On their arrival in Darwin, Dhakiyarr was arrested for the murder of McColl and taken to Fannie Bay Gaol to await his trial. Newspaper accounts described the 'pitiful scenes' that followed as Dhakiyarr and the other suspects were brought in from their 'carefree life' to be 'handcuffed and locked up wailing and shouting'.

Trial in Darwin

Committal

At the coroner's hearing in July 1934 two divergent versions of McColl's death were presented. The key witnesses were Aboriginal men, Harry and Parraner, who recounted their conversations with Dhakiyarr about the spearing of McColl. Harry, whose name was Makarohla, was described as a 'mission boy from Milingimbi' (300 kilometres from Woodah Island), said that Dhakiyarr had confessed to the murder, but said that he had been defending his wife, Djaparri. Parraner, from Dhakiyarr's country, gave evidence through tracker and translator 'Big Pat', that Dhakiyarr, unprovoked, had arranged with Djaparri to spear McColl. With conflicting testimony about motivation, Dhakiyarr was committed for the murder of Albert McColl, and his trial was set for August.

Controversy over the evidence

But where was the evidence? Without eyewitnesses, Crown prosecution lawyers asked, was there any chance that Dhakiyarr could be convicted?

As the prosecutors prepared the case against Dhakiyarr, another heated controversy erupted. Could Djaparri, Dhakiyarr's wife, legally give evidence against Dhakiyarr? White women could not testify against their husbands. What about Aboriginal women? Would it be possible to find other witnesses? And if they were found, could they be persuaded to come to Darwin? Should they be arrested and forced to come to Darwin?

Violence in apprehending innocent Aboriginal witnesses was the last thing the federal government of Prime Minister Joseph Lyons wanted. Northern Territory Supreme Court Judge TA Wells intimated to the Northern Territory Administrator that if the Crown prosecution did not make 'every endeavour' to produce all available witnesses, he would 'make public comment on that fact'. Minister for the Interior JA Perkins took the problem to Cabinet where it was agreed that a 'native guide' be sent from the Groote Eylandt mission station to persuade any witnesses – but not wives – to come to Darwin. Although the Administrator made strenuous efforts to implement the decisions, the missionary at Groote Eylandt just as strenuously refused to assist the government.

The case against Dhakiyarr

Dhakiyarr's trial was set to begin on 3 August 1934. Like the trial of Lindy and Michael Chamberlain in the early 1980s, Dhakiyarr's case drew national and international attention to the Northern Territory's legal processes.

At the trial, lacking eyewitnesses, Dhakiyarr's admission to Parraner, translated by Big Pat, was the sole evidence. As the proceedings were entirely in English, Dhakiyarr was neither able to understand what was happening, nor to recount his version of the events. Judge Wells, a source of worry to the Attorney-General's Department because of his harsh views on punishing Aboriginal criminals, did not know that JA Carrodus, the senior officer of the Department of the Interior, who had been sent to Darwin as Acting Administrater in March that year, was taking detailed notes of his remarks and summing up.

Towards the end of the three-day trial Wells allowed the prosecutor to call a character witness in favour of McColl, and in his summing up described Harry's story, that Dhakiyarr had killed McColl in an effort to protect Djaparri, as an 'improbable concoction'.

Verdict and sentence

The jury found Dhakiyarr guilty. Immediately after the finding was announced, Dhakiyarr's defence counsel, WJP Fitzgerald, sensationally announced that Dhakiyarr had confirmed Parraner's story of unmotivated attack. Judge Wells made no secret of his delight at the news. After hearing some evidence on punishment, on 6 August 1934, Wells sentenced Dhakiyarr to hang within 28 days.

Administrator Weddell wasted no time in cabling the Department of the Interior about the results of Dhakiyarr's (Tuckiar's) trial:

URGENT CLEAR THE LINE
Tuckiar murder McColl sentenced to death
(NAA: A431, 1934/1437, p. 271)

The trial was over, but not the controversy. The next day Chief Protector Cecil Cook applied to the Northern Territory Administrator for a commutation of the sentence and within days Governor-General Sir Isaac Isaacs signed an ordinance enabling a stay of execution.

Appeal to the High Court

Newspaper article from the Melbourne Herald, 11 August 1934, with an extensive report of Justice Starke's decision. (NAA: A1, 1936/4022 Part 2, p.21)

A storm of protest

Reactions to the death sentence handed down to Dhakiyarr by the Northern Territory Supreme Court were strong. Public protest meetings and scathing newspaper reports attacked the treatment of Aboriginal people before the law, particularly in Judge Wells' court. An editorial from the Sydney Morning Herald on 7 August 1934 queried the fairness of Dhakiyarr's trial, concluding that:

Necessary as it may be to let the Northern Territory Aboriginal understand that he must not take the white man's law into his own hands, he should also be taught that British justice knows neither race nor colours, and that before its judgment seat all men are equal.

On 8 August, two days after the sentencing, the Chief Protector of Aborigines in Darwin, Dr Cecil Cook, was contacted by the International Labor Defence organisation. The members of this organisation had been following the case from its beginning and had already written many letters of protest. After the trial they decided to mount an appeal on Dhakiyarr's behalf.

The federal government decides to appeal

Secretary of the Department of the Interior HC Brown and Acting Administrator JA Carrodus were suspicious of the International Labor Defence's motivations for mounting the appeal, and investigated whether the government could initiate the appeal. Chief Protector of Aborigines, Dr Cecil Cook, and Dhakiyarr's lawyer, WJP Fitzgerald, began to prepare material for an appeal almost immediately. For the next few weeks correspondence flew backwards and forwards between Cook and Fitzgerald in Darwin and the departments of Interior and Attorney-General in Canberra. Finally, at the end of August, the Attorney-General's Department decided there were sufficient grounds for the appeal to go ahead.

The Chief Protector of Aborigines lodged an appeal to the High Court of Australia against the verdict on 24 separate grounds.

High Court overturns Dhakiyarr's conviction

Following the preliminary hearing, the High Court appeal began on 29 October 1934 in Melbourne. It was heard before a court of five Justices: Chief Justice Frank Gavan Duffy, and Justices Owen Dixon, Herbert Vere Evatt, Edward McTiernan and Hayden Starke. They considered, among other matters, whether Mr Justice Wells had erred in allowing evidence of McColl's good character. A second issue was whether he had misdirected the jury in implying that Dhakiyarr had 'failed' to speak in his own defence and therefore incriminated himself. A third was the failure of Dhakiyarr's defence counsel to press for a complete acquittal (because Dhakiyarr was defending Djaparri) or a verdict of manslaughter by reason of provocation.

The High Court allowed the appeal, giving its judgment on 8 November 1934. Jointly four Justices politely but firmly rebuked Judge Wells and described the actions of the defence counsel, WJP Fitzgerald, in openly disclosing the 'privileged communication of his client' as 'wholly indefensible'. In finding that Dhakiyarr's first trial had been unfair, the Court also stated that there would be no point in ordering a new trial – as it would be impossible to assemble a jury in Darwin who had not been influenced by the case and reports of it in the press.

In a separate judgment Justice Starke was even more critical of the conduct of the trial and, in announcing the decision, Justice Starke commented that he presumed Dhakiyarr would be taken back to his country by the authorities.

Disappearance

Dhakiyarr (left) was held in Fannie Bay Gaol the whole time he was in Darwin (AIATSIS: Wilson.E2.BW, N3639.15)

After the successful appeal, Dhakiyarr was released from Fannie Bay Gaol, where he had been held for seven months, and was taken to the Kahlin Aboriginal Compound in Darwin. The authorities planned to take him back to Arnhem Land, but the night after his release Dhakiyarr disappeared.

We know that on 8 November 1934, Justice Starke intended that Dhakiyarr be protected on his journey back to Arnhem Land. We know that on the next day, Dhakiyarr was taken from Fannie Bay Gaol to the Kahlin Compound, to be protected by a 'half-caste'. The Kahlin Compound had been established outside Darwin in 1913 for Aboriginal people. From Kahlin, Dhakiyarr was to be brought by train to Pine Creek, then to the Roper River police station where he should have been escorted to his proper country. But what actually happened?

The first accounts of his disappearance were that he had 'gone bush', that is, he had taken himself home. The following year, anthropologist Donald Thomson travelled to Yolngu country and reported that Dhakiyarr had not returned home and was presumed dead. Many believed that Dhakiyarr had been killed.

What do the records show?

The day after Dhakiyarr's disappearance, the Northern Territory Administrator, RH Weddell, cabled the Secretary of the Department of the Interior, HC Brown, that:

ALTHOUGH CHIEF PROTECTOR TOOK PRECAUTIONS HOLD TUCKIAR BY APPOINTING HALF CASTE TO GUARD HIM TUCKIAR LEFT HUT DURING HEAVY STORM RAIN OBLITERATING ALL TRACKS ... REVEREND DYER WITH TUCKIAR DURING PORTION SATURDAY AFTERNOON AND ARRANGED TO TAKE HIM TO PICTURES AT NIGHT WHEN HE WAS DISCOVERED MISSING (p. 7)

On 12 November 1934 Brown wrote to the new Minister for the Interior, Thomas Paterson: 'In view of the specific instructions forwarded to the Administrator the above is most unsatisfactory'.

Two months later the Crown Law Officer reviewed the events as follows:

On the evening of his running away from the Aboriginal Compound where he was being taken care of there was a storm, and it was after this storm that he was last seen at about 5.30 pm in his hut ... It appears, therefore, that since it was not possible to detain him by force, no blame can be attached to anyone when he left the Compound of his own free will (p. 92).

There are no reports of interviews with the 'half caste guard' to find out when Dhakiyarr was last seen. Nor is there speculation on the possible significance of the shirt and trousers left behind in Dhakiyarr's hut.

Given the wealth of newspaper clippings and correspondence from concerned citizens and groups before and during the trial, the archival record reveals a silence on the part of the Australian public. The Association for the Protection of Native Races telegrammed its concern about Dhakiyarr's disappearance and later reported in its 1935 annual report that:

Nothing further has been heard of Tuckiar, and the only comment to be made is that the circumstances of this alleged 'escape' are as unsatisfactory as were those of his trial in the Darwin Court.

But, overall, it appears that the protestors and the press suddenly forgot about Dhakiyarr.

Dhakiyarr belonged to a people whose treatment by the national government was under highly critical examination even in London. But there are few demands for an explanation of his disappearance. No telegram asks the Administrator: No inter-office memo asks: 'What are you doing about his disappearance? Have you found him? Where are you looking? What clues have you gathered together?' Instead, the archives hold no records at all.

Copyright National Archives of Australia 2017