Confronting Murderous Men, page 22
Fitzgerald’s address to the jury was limp and it was felt in some quarters that he was protecting his own reputation if Dhaakiyarr was acquitted. He bemoaned the lack of witnesses and told the jury that ‘very little evidence has been put before the jury, and it was unconvincing. Not even a black man should be convicted on it’.
Judge Wells angrily reproached him saying, ‘A black man has the same rights in the court, and gets the same consideration here as a white man.’
These shallow comments, though probably well intended, were well wide of reality, on language and comprehension for starters. They also showed the bias held by Fitzgerald.
Fitzgerald could have argued that his inability to examine witnesses who weren’t put forward denied him the opportunity to test a possible motivation that provoked Dhaakiyarr’s actions. He could possibly have called Djaparri to give evidence for her husband in support of that possibility. Getting her to court would have been difficult even so.
Fitzgerald continued, saying he was sorry to hear the aspersion on the character of the late Constable McColl, who couldn’t answer it. Astoundingly, he continued, ‘I feel Dhaakiyarr killed McColl through fear.’ He had condemned his own client in an attempt to protect the reputation of McColl. Despite this he told the jury they could not convict his client on the basis of the skimpy evidence before it. Such scrappy evidence, with its contradictions, shortcomings and gaps, could not possibly enable a jury to say that the accused killed McColl. This overlooked his own observation that his client had killed McColl through fear.
Harris addressed the jury, saying they could be satisfied that McColl was killed by a spear thrown by the accused. He said they could be more satisfied with the evidence of Parriner than that of Harry, as his account was given shortly after the event when it would have been clear in the mind of the accused. He gave his account to Harry on the voyage to Darwin and it could be argued that it was concocted to avoid punishment. He urged a verdict of guilty.
Judge Wells summed up the case in a manner that would later raise concerns on a number of points. The jury retired for 30 minutes and returned with a verdict of guilty. The foreman added:
I have been requested by the jurymen to emphasise the fact that the jury is disgusted at the manner in which the Crown has presented this case. There are many witnesses that could have been brought before the Court and have not been brought. The jury think that there should be a protest lodged on that question.
Wells responded:
All I can say is that I thoroughly agree with you. I seriously thought of personally laying the matter before the Attorney-General, but after all I do not know that it is the Attorney-General’s business. I regard it as a very serious business and one that should be enquired into.23
The prosecution in each of the three cases was extremely poor. The judge knew it, the jury knew it and defence counsel knew it – and should have taken advantage of it in defending his clients. His own performance was lame, even in the case against Mäw, Natjiyalma and Ngarkaya, who each received a very severe sentence.
One does not have to look far to find the reason. The three investigations had been conducted by people ill-equipped to do so. The police had been cast aside to watch as their duty was usurped. What was Harris for the Crown given by way of a brief of evidence? It was not his role to reinvestigate the matters, and the evidence was seriously wanting. The missionaries and Fred Gray had tried to keep the peace and broker a resolution that was entirely fanciful, but the former had no idea of how to undertake a criminal investigation, in Arnhem Land, with its unique needs, or anywhere else. It should never have happened. Not only was it a slight to the original authority of sworn police officers, it was unfair to the accused, the families of the deceased and the course of justice.
At 11 pm on 3 August, Fitzgerald asked the judge to defer sentencing until the following Monday and before he adjourned he was granted permission to make a statement to the Court:
I have a matter which I desire to mention before the Court rises. I would like to state publicly that I had an interview today with the convicted prisoner Dhaakiyarr in the presence of an interpreter. I pointed out to him that he had told these two different stories and that one could not be true. I asked him to tell the interpreter which was the true story. He told him that the first story told to Parriner was the true story. I asked him why he told the other story. He told me he was too much worried so he told a different story and that story was a lie. I think this fact clears Constable McColl. As an advocate I did not deem it advisable to put the accused in the box.
At 10 am on 6 August, the Supreme Court convened and Judge Wells, acting in accordance with the new ordinance, asked if any evidence was forthcoming to support a plea of leniency for the prisoner. Dr Cook, Chief Protector of Aboriginals, submitted that Dhaakiyarr was an uncivilised myall who had different attitudes and outlook on human life to white people. He argued that it was impossible from the evidence presented to the court to tell that the motive for the killing was fear, rage, malice or simply brutality. In any event, he said, the motive might to the prisoner be creditable. The killing could be regarded by his tribe to be a privilege or even as being imperative. He may have considered spearing the policeman necessary to save his wife. He stressed that Dhaakiyarr had gone voluntarily to Darwin.
Wells: ‘If anyone wants me to take into account tribal law and practice they will have to bring evidence before me on those matters. I am not going to speculate.’
Fitzgerald supported Cook’s request for consideration of Dhaakiyarr coming to Darwin voluntarily.
Wells: ‘It is quite possible that the people who brought him to Darwin may have a lot to answer for.’
Cook: ‘We cannot talk to him and understand why he did the killing.’
Wells: ‘We have very good reason to suspect that he was shortly before that mixed up in another murder, and when he came along and found his lubra, who no doubt knew a lot about the other murder, in the hands of the police, he probably came to the conclusion that the police would find out things from her, and he went to extreme measures to get her out of their hands. He knew who the police were and probably he was afraid of the information she might give to the police.’
Cook: ‘Why did he come to Darwin?’
Wells: ‘I do not know why he did that. It would be very interesting to know. It is quite possible that he was brought to Darwin under false pretences, but if that is so, it must lie on the conscience of those who brought him. Have you considered the effect on the minds of other Aboriginals of announcing to them that they may kill a policeman and the only punishment they need fear is a few years imprisonment? I am not going to be a party to the making of such an announcement. I do not think it proper to sacrifice the interests of the other Aboriginals for this one man.’
Cook: ‘He might have felt obliged to recover his lubras. It might have been that he was actuated by courage.’
Wells: ‘I am afraid I am unable to look at it in that light. On the evidence it appears to have been a deliberate and cunning killing. If the Government had taken the proper steps we might have been able to ascertain what the view of the tribe was as to the killing, but no-one seems to have worried about that matter. The legitimate authorities have recently passed an amendment to the law which throws upon me the responsibility of deciding what the punishment should be; it is true that Cabinet have since shown that they are not prepared to abide by my decisions and I think their action in that respect is highly improper. But that is a matter for Parliament to deal with. As far as the law is concerned, they have thrown the responsibility on me, and I have to discharge that responsibility in the light of the evidence which is before me…the position is that the legislature has not abolished the death penalty. I have suggested to them that they should do so if they think it proper, but they have not done it. It cannot be abolished by back door methods. In this case no justification has been shown for refraining from imposing the death penalty.’
The judge formally sentenced Dhaakiyarr to death by hanging in 28 days time. Although there was merit in Wells’ comments about the government taking the lead in abolishing the death penalty, he was clearly supporting his argument by using the life of a man who was oblivious to what was happening to him. He should never have been used as a pawn.
By 10 August, Fitzgerald and Dr Cook had commenced appeals to the High Court. Perilously close to execution day, on 27 August, the Secretary of the Attorney-General’s Department advised the Interior Minister that an appeal should be lodged forthwith against Dhaakiyarr’s conviction. The Attorney-General’s Department sent a message to the Interior Minister to have a telegram despatched to the Administrator at Darwin.
Secret for your own information only. Ordinance being passed giving power to Attorney-General to recommend to Governor-General that carrying out of any death sentence be postponed from time to time for period not exceeding twenty eight days. Proposed to recommend such postponement in Dhaakiyarr’s case. Meantime, appeal should be made in Dhaakiyarr’s case but all instructions to Melbourne should go through Fitzgerald. To facilitate preparation of papers in appeal I am prepared to make certain official documents available for Fitzgerald’s agent.24
As he waited in Fannie Bay Gaol, probably bewildered by what was going on around him, Dhaakiyarr was interviewed through an interpreter by a ‘special representative’ from the Melbourne Herald. The newspaper gave a hint to southerners about Dhaakiyarr’s imminent execution and his feelings about it, in demeaning language and using the name Takiar:
Takiar Knows of Death Sentence — Waits and Hopes for ‘Walkabout’. Does Not Quite Savvy his Reprieve – Contrition in Place of Smiles.
DARWIN, Saturday – From the gloom of the Fanny Bay’s Gaol condemned cell, where he sits badly frightened at the sentence of death passed on him by Judge Wells last Monday for the murder of Constable McColl, although he does not yet understand properly, Takiar, the Caledon Bay [sic. Blue Mud Bay] aboriginal declared today that if he was ever set free he would never kill a white man or a Japanese again.
His low spirits are actuated by a misconception of the nature of the reprieve which will be granted to him shortly, and a fear, a real one, that his ‘walkabout’ days are ended.
He was a very subdued and contrite aboriginal today, because since Tuesday, when he was ignorant of the meaning of the sentence passed on him the previous day, he had learned, through an interpreter that the judge ordered him to be hanged.
Efforts have been made each day to convince him of the gravity of his sentence, but all failed because of the absence of anyone who could give him even any inkling of what had happened.
Sitting cross-legged and ill at ease on the floor of his cell, bare except for his rush mat, two blankets and a pannikin of water, with an interpreter squatting on his heels beside him and a gaol guard standing nearby, Takiar told how he did not want to die and how sorrier and wiser he was now.
‘I savvy all right why I sit down Fanny Bay now’, he said. ‘I make big trouble long policeman, white men, longa my own country. By and by policemen here (gaol guards) tie up legs, tie up arms, puttem rope longa here,’ (pointing to his neck).
Then with an eloquent sweep of his hand across his throat and and upward jerk – ‘cuttem my neck. I very big frightened. I want to stop alive. I very sorry.
‘I savvy now, I can’t kill policeman, white men, Japanese. I no more savvy that before. I savvy Fanny Bay now. No more walk about. I get tired sit down one place all time. I savvy all policemen white enemy friend.
‘No more beat me, no more kill me, give plenty tucker, tobacco. Suppose I go back my own country. I talk big mob black fellow we can’t fight, kill policemen, white men anymore. I savvy policeman. I no more frightened policeman now. Suppose policeman come to my country now, I no more run away. I talk longa them. No more want make trouble longa policeman. I know I do wrong killem policeman.’
‘Suppose all about big feller white government bosses talk more, better policemen. No more cuttem your neck. More better you sit down longa gaol. Some day go back longa your country? he was asked.
For the first time Takiar’s face lit up. ‘That good talk,’ he said enthusiastically. ‘Fanny Bay good place. Plenty tucker, plenty bacca.
‘No more work, but,’ he added wistfully. ‘I very sorry my children.’
‘One plenty big whitefeller government boss talk me no more cuttem neck belonga any blackfellow now,’ Takiar was told.
‘I no more ben hearem that talk yet,’ he replied, then hopefully, ‘Might be policeman no more cuttem my neck.’
‘Might be policeman boss bring you that talk longa paper one day,’ he was assured, as the interview closed.
So, until Takiar’s reprieve comes along and he joins his countrymen, Mow, Natchelmar and Ngarkaya (sic) on the gang that sits all day breaking stones with hand hammers, in the gaol yard, Takiar will sit cross legged in his dimly lit cell, waiting with the infinite patience of a blackfellow, for the white man’s vengeance that he believes is his lot.25
The press report hit a sour note in Canberra. Two days after it appeared, the Department of the Interior sent a cable to the Administrator summarising the report and asking had the interview taken place and if so, who had authorised it. It was made clear the Minister considered it highly undesirable that interviews with the press should be permitted. No reply is recorded.
Dhaakiyarr was granted a further stay of execution of 28 days on 26 October and the High Court appeal was set for 29 October. Chief Justice Sir Frank Gavan Duffy and justices Starke, Dixon, Evatt and McTiernan made up the court for the two day hearing. Messrs Fullager KC and Dethridge of counsel appeared for the appellant as agents for Fitzgerald in Darwin. Mr Reynolds appeared for the Crown. Mr Fullager opened by affirming that the Supreme Court Ordinance (NT) No 12 of 1918 enabled the High Court to grant leave, and gave the High Court the fullest jurisdiction in the matter empowering to make any order it thinks fit. Legal argument followed and Mr Fullager outlined the many points available to support the appeal. Mr Reynolds proposed a counter-view.
The full judgement was handed down on 9 November 1934. Briefly, the case was summarised by way of a written joint judgement by all of the judges except Justice Starke, who provided his own summary. The circumstances of the police operation on Woodah Island were recounted as was the arrest of Dhaakiyarr on his arrival at Darwin. The trial was dealt with in detail and the verdict found against the prisoner, Dhaakiyarr, was ordered to be set aside. When considering whether a new trial should be had, the court found that due to publicity surrounding the case in Darwin and beyond, the prisoner could not be justly subjected to another trial at Darwin and no other venue was practicable. ‘We therefore allow the appeal and quash the conviction and judgement and direct that a verdict and judgement of an acquittal be entered.’
Justice Starke, although outlining his own reasons, also found that the conviction should be set aside and a new trial under conditions fair to the accused was now impossible. In effect, though the reasons differed somewhat, the judges were unanimous in their decision to quash the conviction and prevent a new trial.26
Dhaakiyarr was a free man and was released from Fannie Bay Gaol on 9 November, before being taken to the Kahlin Compound and Half Caste Home on Lambell Terrace overlooking Mindil Beach, later called Myilli Point, Darwin. Reverend Dyer had been asked, presumably by Stretton, to see Dhaakiyarr to tell him not to run away, as he would be returned to his own country via Roper River. This implied his return on Holly. He spoke with Dhaakiyarr to tell him what was happening as best he could. Dhaakiyarr was glad to see Dyer and glad to be free to go home in ‘a couple of sleeps’ according to Dyer. The police asked Dyer to take Dhaakiyarr to the open-air theatre where he would see what he might consider a large crowd, which might impress him not to fight white men. Dhaakiyarr was to come with other Aboriginal people; they attended but Dhaakiyarr was not with them.
Dyer waited and later told of an agitated constable coming up and saying that Dhaakiyarr had disappeared. He was never seen again.
Over the ensuing years many have had theories about what happened to Dhaakiyarr. Egan addressed some of these stories, the most common being that the police had shot him and thrown his body into the harbour. A former Darwin resident indicated she was prepared to sign a statutory declaration stating she had heard a particular policeman several times claim, while affected by alcohol, that he had shot Dhaakiyarr. The woman suffered a stroke and never made the declaration. Egan did not name her or the policeman involved in the alleged conversations. He canvassed Darwinians for information and found two old-timers who claimed the same policeman had told them that Vic Hall had shot Dhaakiyarr. The policeman in his cups seems to have been unsure if it was he or Hall who shot Dhaakiyarr. Perhaps alcohol shone new light on his recollections. The police who wanted Dhaakiyarr taken to the theatre to impress upon him the futility of waging war in white men were obviously looking to the future and their actions were not indicative of his imminent demise.
Hall, in turn, wrote in his book Dreamtime Justice that Big Pat, out of loyalty to McColl and in accordance with Aboriginal custom, relentlessly pursued Dhaakiyarr until they fought and Dhaakiyarr fell into water where he was taken by a crocodile. Egan is recorded as saying that Hall often drew a long bow. His account, however, should not be entirely dismissed, even if it was coloured by poetic licence. Remember Fred Gray’s approach towards the Japanese fishing boats when he was fired on by Gunguyuma and Nanyin demanded trial by makarrarta for having fired the gun at our friend Mr Gray. It was an example of retribution for a wrong.
There is no evidence that Dhaakiyarr was subjected to the ordeal. If he had, people would have known of it, if only because of the number of participants required to take part. Big Pat’s grandson, Dawson Daniels, told Egan that his grandfather was a policeman first and an Aboriginal man second, but this would imply his first duty was to white man’s law before makarrarta. He had, after all, remained aloof from his sister on Woodah Island and did what he needed to do, and was conflicted. It may also have been that his brother-in-law relationship with Dhaakiyarr was fraught with animus.
