Tuckiar v The King

Tuckiar v The King is a landmark Australian judgment of the High Court which was decided on 8 November 1934, after a two-day hearing on 29–30 October 1934. The matter examined the behaviour of the judge and lawyers in the trial of Yolngu man Dhakiyarr (Tuckiar) Wirrpanda in the Northern Territory Supreme Court a year earlier for one of the Caledon Bay murders, and overturned the judgement which had found the appellant guilty and sentenced him to death.

See also: Caledon Bay crisis

Tuckiar v The King
CourtHigh Court of Australia
Decided8 November 1934
Citation(s)[1934] HCA 49, (1934) 52 CLR 335
Court membership
Judges sitting

At the time the original case had stirred much controversy and caused a debate about the appropriateness of the Australian justice system for Indigenous Australians. It has become a case study in, and raises many issues for, legal ethics regarding instructions by Judges and the behaviour of defence counsel, as well as the treatment of Indigenous people before the Australian justice system.

Background

Dhakiyarr Wirrpanda, a Yolngu Aboriginal man living a traditional life,[1] was sentenced to death in the Northern Territory Supreme Court for the murder by spearing of a police constable, Albert McColl, on Woodah Island, an island off Arnhem Land on the northern coast of Australia. McColl had gone to Arnhem Land with a police party to apprehend some Aboriginal people thought to have killed the crew of a Japanese pearling lugger. It emerged that McColl had been handcuffed to Djappari, a wife of Dhakiyarr, and some other women.[2]

The trial lasted only one day, with a guilty verdict returned by the 12-person jury[2] after what was later deemed to be misdirection by Judge Wells. Defence arguments of self-defence or provocation were not put to the jury.[3] The episode surrounding these killings and that of another two men were referred to in the press as the Caledon Bay murders.[4]

Appeal

The case which became known as Tuckiar v. the King was the appeal in the High Court of Australia from the Supreme Court of the Northern Territory.[3] The case was heard over two days, 29–30 October 1934, in Melbourne[2] after some protest and lobbying by people including the Anglican clergyman A. P. Elkin.[5][6]

The High Court unanimously found that there had been a miscarriage of justice, and that the trial judgment should be set aside.

On the way home from his seven-month incarceration in Fannie Bay Gaol, Dhakiyarr went missing, never to be seen again.[2]

Legacy

In an act of reconciliation, 38 descendants of McColl and around 200 descendants of Dhakiyarr attended a 2003 ceremony[7] in the Supreme Court of the Northern Territory in Darwin. This was chronicled in the 2004 film Dhakiyarr vs the King, by Tom Murray and Allan Collins,[8] which went on to win the NSW Premier's History Award, was nominated for the Grand Jury Prize in the 2005 Sundance Film Festival[9] and won the Rouben Mamoulian Award in the Sydney Film Festival.[10]

The quote "Our system of administering justice necessarily imposes upon those who practise advocacy duties which have no analogies, and the system cannot dispense with their strict observance." from the case was used in the AB v CD; EF v CD court case concerning the use of the criminal barrister Nicola Gobbo as a secret informant by the Victorian Police.[11][12]

References
  1. Producer: Dr Tom Murray (7 June 2013). "Tuckier (Dhakiyarr) v the King and Territory". Hindsight. Australian Broadcasting Corporation. Radio National.
  2. "Dhakiyarr Wirrpanda: Timeline". Uncommon lives. Archived from the original on 6 February 2006.
  3. Tuckiar v The King [1934] HCA 49, (1934) 52 CLR 335 (8 November 1934), High Court (Australia).
  4. Trove: List of newspaper articles referring to Caledon Bay murder/s
  5. Ted Egan (1996) Justice All Their Own. Melbourne University Press.
  6. "About the making of the film: Dhakiyarr vs the King". Screen Australia. Archived from the original on 4 March 2014. Retrieved 8 July 2019.
  7. "Invitation to a ceremony in memory of Dhakiyarr". Multicultural Council of the NT Newsletter. Archived from the original on 17 January 2006. Retrieved 9 November 2005.
  8. "Dhakiyarr vs the King". ABC. Moving history: 60 years of Film Australia. Archived from the original on 6 September 2014. Retrieved 21 August 2014.
  9. 2005 Sundance Film Festival
  10. Tuckiar v The King at IMDb
  11. AB v CD [2018] HCA 58
  12. Kunc, Francois (1 October 2019). "Lawyer X - the first conviction overturned". Australian Law Journal. 93 (10): 808. eISSN 0004-9611. Retrieved 20 April 2022.

Further reading

News reports of the day
  • "High Court of Australia: Tuckiar v. The King (n Appeal)". Northern Standard. No. 92. Northern Territory, Australia. 23 November 1934. p. 3. Retrieved 10 July 2019 – via National Library of Australia. – "...the full text of the Judgment of the High Court in the McColl case, and is the joint judgment of the Chief Justice (Sir Gavan Duffy), and Justices Dixon, Evatt, and McTierman. The separate judgment of Mr. Justice Starke, who concurred with his brother judges in acquitting Tuckiar, will appear in our next issue."
  • "High Court of Australia: Tückiar v. The King: Judgment of Mr. Justice Starke". Northern Standard. No. 93. Northern Territory, Australia. 27 November 1934. p. 3. Retrieved 10 July 2019 – via National Library of Australia. - detailed transcription of court proceedings, including words of the judge when handing down judgement.

Other
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