Why did the law fail Dhakiyarr Wirrpanda? Why did the events of Dhakiyarr's case unfold the way they did? The records of government are made by people and they are about people. Through them – if we can find the right questions – we can ask for explanations. Here we look at some of the people prominent in the events leading up to the trial and, through the records, unravel why the appeal for justice was heard.
The records on Dhakiyarr's case end in the mystery of his disappearance in Darwin in November 1934. But was that the end? In June 2003, 70 years after Dhakiyarr Wirrpanda speared policeman Albert McColl, the families gathered at the Supreme Court of the Northern Territory for a Wukidi ceremony that would free Dhakiyarr's spirit and enable reconciliation between the Wirrpanda and McColl families.
The official records held in the National Archives are not the only sources on the events in Caledon Bay. Since his disappearance, Dhakiyarr's family has continued to seek answers about his disappearance and tell the story of the 'olman' [old man]. Dhakiyarr's descendants, Dhukal and Wuyal Wirrpanda, have now given their story to the National Archives to be added to this website.
Public servants working for the Department of the Interior played key roles in Dhakiyarr's case. Between 1912 and 1978 the Northern Territory was administered by the federal government in Canberra. During the 1930s the Minister of the Interior was responsible for the Northern Territory and appointed a Northern Territory Administrator in Darwin. The Chief Medical Officer for the Northern Territory was automatically the Chief Protector of Aborigines.
Dr Cecil Cook was the Chief Protector of Aborigines during Dhakiyarr's trial and appeal. The Chief Protector was a position of great power and influence – both in the administration of the Aboriginals Ordinance and control over the daily lives of Aboriginal people themselves. As the only official empowered to mount an appeal on behalf of a Territory Aboriginal, Cook worked with Dhakiyarr's lawyer, WJP Fitzgerald, to prepare Dhakiyarr's appeal to the High Court.
In the years following Dhakiyarr's trial, Cook played a prominent role in a 1937 state and territory conference on Aboriginal administration. He argued for the removal of so-called 'half-caste' children from their families.
The other public servants with significant roles in Dhakiyarr's case were the senior officials of the Department of the Interior and the Northern Territory Administrator.
Colonel Robert Weddell was the Administrator when Constable Albert McColl was killed on Woodah Island in August 1933. Partly because of the long distance between Darwin and Canberra, the Administrator held a position of considerable local power.
He was responsible to the Minister for the Interior, JA Perkins, and in regular contact with senior officials of the Department, particularly Chief Clerk JA Carrodus and HC Brown. In 1934, when Dhakiyarr's appeal was heard in the High Court, Carrodus was acting Adminstrator in Darwin for six months and Brown was Chief Clerk of the department in Canberra.
Weddell, Carrodus and Brown triggered the public furore over initial reports that a large punitive expedition would be sent to Caledon Bay in response to the spearing of Constable Albert McColl.
Apparently after discussions with the police, three weeks after news of the spearing reached Darwin, Weddell asked Brown to equip a large force – 12 white policemen or civilians sworn in as special constables, and 12 Aborigines. They were to be armed with 20 rifles with 2000 rounds of ammunition, 12 revolvers with 1000 rounds, and four shotguns with 300 cartridges. 'Strong demonstrative force imperative', he cabled, 'as natives numerous, hostile and cunning'. The Groote Eylandt mission station, he asserted, was 'in imminent danger' (p. 159).
Such a large official punitive force had not been seen in Australia for 100 years. When Brown sought advice from Carrodus, he was told:
The party to be of any use, must be fairly large, because the abos [sic], having routed the first party, will be in high fettle and will certainly attack the second expedition ... I think we must do something, in view of the killing of a police constable. Otherwise the lives of all whites in the North East will not be safe (NAA: A431, 1947/1434, p. 188).
The government informed the press that 'a display of force was necessary to uphold the prestige of the administration', but the party would not fire except in self-defence. The Department recommended to the Minister that the ammunition Weddell requested be sent by first boat, but before the plans went any further, the Administrator should be asked to state what evidence he had of the identity of the murderers, and whether identification would be possible.
A few days later the Melbourne Herald reported that the Minister for the Interior had arranged for 'special supplies to equip a punitive expedition' to be 'rushed north'. But three days later, by 8 September, the small army proposed by Weddell had dwindled to a much smaller group of three police and four trackers.
What explains this about-face? Officials of the Department of the Interior, pushed by Northern Territory Administrator Robert Weddell, had incautiously given an in-principle approval to the massive armed expedition. While the records show that government officials in different departments and, crucially, different geographical locations had different priorities, the emergence of a large national and international protest against the proposed punitive expedition was a determining factor in the decision of their political masters to back down.
As Minister for the Interior from 1932 to 1934, John Perkins was the person responsible to the parliament and to the public for the actions of the Department of the Interior. His job was to balance the demands of voters in the Northern Territory (although their Member could not vote in the House of Representatives), the protests of lobby groups such as the Australian Society for the Protection of Native Races, the views of missionaries, the reports and recommendations of his northern officials, and the interests of Aboriginal people in the Northern Territory.
In the case of the proposed punitive expedition, it was not the appointed public servants, but the elected politicians who faced the political implications of the public seeing a punitive expedition as a re-enactment of the Coniston Massacre, carried out by settlers and a policeman in Central Australia only five years earlier.
The press played a critical role in escalating the controversy. While it took 10 days for news of Constable McColl's death at Woodah Island in eastern Arnhem Land on 1 August 1933 to reach Darwin, by the following day the story was carried in newspapers around Australia.
Different newspapers, even in the same city, had different views of events. The Melbourne Sun reported 'a strong feeling that the Arnhem Land Aborigines must be taught a severe lesson', and that in Darwin, experienced bushmen were ready and eager to form a patrol party to teach it.
A few weeks later the Australian press was headlining news that the government was preparing a punitive expedition. Some papers argued that the defence of the missionaries at Groote Eylandt was desperately needed, while others urged caution. But the facts were confused. A former Northern Territory Protector of Aborigines maintained that the Groote Eylandt mission was not in danger at all. To the politicians it was soon abundantly clear that public opinion was divided.
For Prime Minister Joseph Lyons and his Interior Minister John Perkins it may have felt as if the sky had fallen in. Sackfuls of letters, telegrams and reports of angry public meetings poured into Canberra. Archbishop Daniel Mannix, the International Labour Defence, Dame Mary Gilmore and the Amalgamated Postal Workers Union were among those protesting against the punitive expedition. Well known anthropologist Olive Pink encapsulated the feelings of many when she telegrammed:
FOR SAKE OF HUMANITY DASH EVEN NOMINAL CHRISTIANITY AND NAME OF AUSTRALIA DO NOT SEND EXPEDITION AGAINST ARNHEIM NATIVES WHAT IS CHIEF PROTECTOR FOR?
Despite the emerging controversy, Minister Perkins was reported in the Melbourne Herald on 4 September 1933 to be ready to 'finally approve' the punitive expedition, and other ministers were also cited as supporting the plan. But the following day, the Herald quoted Perkins as being 'reluctant to set in train events which might lead to further bloodshed', and to be discussing the matter with Prime Minister Joseph Lyons.
By 6 September Perkins was asserting that he never had any intention of sending a punitive party. Two days later, reports appeared that a much smaller party of three police and four trackers was being organised.
Although the Minister for the Interior and the Prime Minister may not have been averse to some kind of show of force, mindful of national and international public opinion, they did not support the actions proposed by Weddell and certain other senior officers. The national (and international) priorities of the Prime Minister and his Cabinet ministers far outweighed the local priorities of the Northern Territory officials. Public protest was effective in preventing an armed expedition, large or small.
Another former politician, Stanley Melbourne Bruce, played a significant role in the decision against a punitive expedition decision. Bruce had served as Prime Minister from 1923 to 1929, but lost both government and his own seat in 1929. He was re-elected to parliament in 1932 and spent 1932–33 in London where he served Prime Minister Joseph Lyons as 'minister without portfolio'.
Bruce was appointed Australia's High Commissioner in London on 7 October 1933. A few weeks before he resigned his seat to take up the diplomatic position, the High Commissioner's office sent a coded telegram to the Prime Minister's Department seeking information on what was being described in the British press as a punitive expedition against the Caledon Bay Aborigines.
Asked for an explanation, Secretary of the Interior HC Brown sent his answer back to the Department of the Prime Minister immediately, but it was not until November that Bruce received the assurance that only two missionaries and a wireless operator would be sent to Arnhem Land, whose object was 'to get in touch with the Caledon Bay natives and endeavour to bring about a better understanding between them and the Government'. No police officers or private persons would be present.
In the interim, the High Commissioner was left to deal as best he could with erroneous reports like that in the London Daily Herald, which reported sensationally that a massacre in Arnhem Land had already taken place.
Much respected by senior members of the Lyons government, some of whom had been ministers in his own cabinet, Bruce's concerns and representations of British opinion were of particular significance, from the outbreak of controversy over the proposed 'punitive expedition' early in September 1933.
Missionaries also played a key role in the government's response to the spearing of Constable McColl. In 1933 the Groote Eylandt mission was the only one in eastern Arnhem Land, and served as a 'straw target' for alarmed reports of a possible Aboriginal uprising. Church representatives were nonetheless among those lobbying for a peaceful and cautious approach. Church missionaries Hubert Warren and Alf Dyer played a major role in events. By October 1933, the onset of the wet season, even the smaller police party was cancelled. The government began negotiations with the missionaries and in December a missionaries 'peace party', led by Warren and Dyer, sailed to Woodah Island to contact the Balumulu.
As a result, by the time the Department of the Prime Minister cabled London at the end of November to reassure the High Commissioner, the punitive expedition had become a peace party led by missionaries and intended no more than to 'reconcile' the Aborigines.
The sensitivity of politicians to press and public was also evident in events following Dhakiyarr's trial in the Northern Territory Supreme Court. The government's decision to appeal the death sentence followed and sought to pre-empt the International Labour Defence organisation from bringing an appeal.
It may be significant that the notice of appeal was issued by the High Court just two days before the federal election of 15 September 1934. Minister for the Interior John Perkins was one of six government members who lost their seats to Labor at this election. Perkins' successor, Thomas Paterson, headed the Department of the Interior during the High Court appeal and in the aftermath when Dhakiyarr disappeared.
Six judges were involved in Dhakiyarr's case. Judge TA Wells presided over the case in the Supreme Court of the Northern Territory. Five justices heard Dhakiyarr's appeal in the High Court of Australia.
Frank Gavan Duffy was the Chief Justice and joined with Owen Dixon, Herbert Vere Evatt and Edward McTiernan in writing one of the two court judgments on Tuckiar v. Rex. Owen Dixon later served as the Australian Minister to Washington (1942–44) and the Chief Justice of the High Court (1952–64). Evatt later served as Attorney-General and Minister for External Affairs in the Labor governments of John Curtin and Ben Chifley, President of the United Nations General Assembly (1948–49) and Leader of the Opposition (1951–60). McTiernan was a justice on the High Court from 1930 to 1976. Hayden Starke was the fifth justice hearing Dhakiyarr's case and wrote his own judgment. Starke was a High Court justice for 30 years (1920–50).
Thomas Alexander Wells presided over the Darwin trial of Dhakiyarr Wirrpanda in August 1934. He had been appointed to the Supreme Court of the Northern Territory a year earlier.
Although trained in Sydney, like many Darwinites he resented interference from the federal government in Canberra. He objected to the autonomy of the judiciary being overruled by the parliament or the executive government.
During the lead-up to Dhakiyarr's trial, the conflict between Wells and the public servants in the Department of the Interior became so acute that Interior Secretary HC Brown sent a coded instruction to Acting Administrator JA Carrodus, to report on Wells' courtroom comments: 'Could you arrange this without Judge's knowledge'. Accordingly, and unknown to Wells, Carrodus took notes at the trial. Today these are the only official record of what happened at the trial. (See the Carrodus notes in The case against Dhakiyarr.)
After Wells passed the death sentence on Dhakiyarr Wirrpanda the London Daily Herald, 8 August 1934, referred to him as Australia's 'Judge Jeffreys', a notorious 'hanging judge' in 17th-century England.
Stung by what he took to be government criticism of his remarks at the conclusion of Dhakiyarr's trial, he demanded a correction of the 'misrepresentation' from Prime Minister Joseph Lyons.
Criticism of Judge Wells did not end with Dhakiyarr's trial. The records in the National Archives contain several submissions seeking to remove Wells or prevent him from presiding over Aboriginal trials. There is no evidence of the government's response, but he served on the Supreme Court of the Northern Territory until 1952.
A recent assessment of Wells described him as 'last in a long line of strong-minded but eccentric Northern Territory Supreme Court justices' (Egan p. 198f).
This interview with Wuyal and Dhukal Wirrpanda was recorded at Dhurputjpi by Peter Read and Kate Bagnall in September 2004. Wuyal and Dhukal Wirrpanda are the grandsons of Dhakiyarr Wirrpanda. They live at the homeland centre, Dhurputjpi, in the same country as their grandfather. Now in their fifties, they were too young to know their grandfather, but they heard the story of what happened at Woodah Island from their grandmother, whom they call mother. She was one of Dhakiyarr's wives who was captured by McColl and was chained to McColl at the time of his death. She died in 1997.
The story of Dhakiyarr has never been forgotten by the Wirrpanda family. Rather, his life and disappearance have been frequently discussed. Young people are still shown the places where he lived and have the story explained to them.
Reader's note: he and she are commonly used interchangeably in Aboriginal English.
When we about about eight or nine years of age we started to hear of a bit of that olman, what happened to him when he was taken from Woodah Island and bring it in, and that's when the police get him and take him into Darwin. That olman's story.
She [Wuyal and Dhukul's grandmother] told us what happened at Woodah Island after Constable Albert Stewart McColl came to bring the trackers down to Caledon Bay. But they came to the wrong place. Boat landed [in a spot sheltered from the wind].
Dhakiyarr was sitting down with his people.
They [women] went out early in the morning.
Police came from other side of the island. Men came from Umbakumba [mission station]. Left their boat and walked up to the middle. Billabong in centre. Here. And our man [indicating Dhakiyarr's position on map] was here.
All they [police] could just see a fire way out from this end, they could see the fire on that island. So they went there to check, you know, check it out. They were looking for Caledon Bay, looking for Japanese was killed there. Policeman came round and saw a fire was burning on that island. When they got there, when they left their boat, they try to go by walking.
[The women were on the] other side of that island, little sort of a pond or something. They used to gather food there, fresh water, yam, lily root, they were gathering there, they didn’t know what was going on. They thought that no one would come and visit them. They got a shock seeing those police came round there. Instead of go and asking them a question, they just go, and said to my mother,
you have to go and show us where all these men are.
[Did she tell you about the alleged sexual assault at Woodah Island? (in Parraner’s committal hearing testimony)]
We haven't heard about trousers and all this. Mum didn't say [anything about that]. We were asking her to tell us the truth.
[Meanwhile] So it was later in the afternoon. Dhakiyarr was there sitting down on the beach with the other men. They was a bit worried about his daughter, our sister, she went with her mother. He was a bit worried and it was getting late. So he thought, he [our mother] told us.
I have to go and look around for my daughter and for my wife.
That's what Dhakiyarr said. So while he was walking he could hear my mum singing out to Dhakiyarr, Mum wanted to get help.
Come and rescue us!
And here he was, when he saw through the bush, and he could see all the ladies got chained up. Stewart McColl, he was in front with my mother, and he was at the other end of the chain. There was a couple of more womans. Just took ol woman, show where's your husband. Those woman knew the police wanted to show them where the men was. Pulling them with the chain. Mother was a bit scared, that's why she was calling out for help.
Dhakiyarr! Dhakiyarr!! Where are you? Show yourself!
He was start walking from there now, go and look. Never saw police boat, he was just worryin that his daughter was late. He was a bit worried for our sister.
I have to go and check what's happening.
A hundred metres away he heard our mother singing out.
Dhakiyarr, Dhakiyarr. Where are you?
He just walking very fast now, he know something was happening. He could see through those little bushes, and he can see the whitefeller handcuff walking. Little girl [our sister] on mother's shoulders.
Anyway, and he [Dhakiyarr] could see them.
Eh, what's going on?
And my mother, [sing out]
Dhakiyarr! Show yourself!!
When Dhakiyarr heard her singing out calling his name, he had this woomera, and he was pointing. He could see through the little bush.
Hey, that's a white man.
And he knew straightaway, that's the police. And our mother wasn't just looking around there, she was looking at every bush, and she could see the head of the woomera telling her to move. So here they were walking together, and all of a sudden our mother got away from that police, and when he [she] got away then he threw the spear, when it was clear. Forty-five metre.
And he got that spear and spear the police. And just got him.
And the other one [policeman] behind, he had a gun too, he was behind this other woman, make sure no woman escape, and the second spear got his hat.
[Dhakiyarr] bashed off the chain with a rock or something.
And Stewart McColl, when they finished stabbing that police, they dug a hole and buried him, and the spear was sticking out.
When those other tracker down the beach, they could hear gunfire. They were just looking round. Two days they were searching for him, couldn't find him. And the next, saw this spear sticking out.
[After killing McColl, Dhakiyarr's people] they got into a dugout canoe and they paddle to [another island called] Gunyuroo Island and sink their canoe, and women sent down to get water. Police couldn't find them.
What happened to Dhakiyarr after he was released from Fannie Bay gaol? Other [ie some] people say he was hanged, other people say that police shot him for revenge.
Kahlin Compound. That's where they left him there, that's what the other Aboriginal people was staying there. That's where they came round and got him. After we got to Darwin for this Wukidi ceremony, and after we were talking to this Ted Egan, and what Ted Egan heard, she was very old, she was a writer, they took him down to pictures or something, and this old lady was sitting down there and he heard a gun at that place, and that ol lady knew straight away. That was Dhakiyarr. We can't understand because of this story. When she heard that shot, she was looking round for Dhakiyarr – so she was at the pictures too.
He was tied to that tree and got shot and got burnt.
[Wuyal and Dhukal also spoke about the long range cause of the tragedy: the Gan Gan massacre, 1911. Gan Gan is in Dhakiyarr's mother’s country.]
Gan Gan. He [ie Aboriginal people] was get shot here, on the river, and burnt them. And they get shot here on the river, didn't burnt them. It's a long story. And a sad story too. I know it's been told before. Because what they did was shot them and let them float in the water, river, make them lie everywhere, just left him there.
One of the trackers, he was from Roper River that feller. After they kill his sister, those Gan Gan people, because she was against the law. Sister, she was collecting firewood – they were telling stories, you know and this all this other old people said:
Oh that's the lady.
They were having men's ceremony, and this lady came up and disturb the men's ceremony, and they kill this sister. And this brother of the sister travel back to the river, and told [the police]:
Oh lots of Yulngu [Aboriginal people] at Gan Gan. I'll show you where they are.
Because he knows where those people, and he knows where to get them. Show the policeman. And then they were coming round now.
Oh you want some food, we'll give you food.
That's our grandmother's place, people that got shot. He [Dhakiyarr] could know their armbands, recognise them. Only two survive, they ran away.
After they heard that guns shooting here, at Gan Gan, they went over to give a room to the horse parties going up and down, so they went to Woodah Island so they can get safe there. He went to that island, he was going to sit there and have a peace, with his family, no disturb, and the policeman come up. Came round, and disturb his way of living. Straightaway came into his mind that Gan Gan shooting. That's what Dhakiyarr thought, because when they shot all those people, Gan Gan, that's his mother's people, so what came into his mind when the police came round there, the horsemans came round there, was in his mind, maybe Gan Gan [all over again] because they were shooting his mother's clan.
That was why, in his mind, was Gan Gan.
From November 1933 the Balumulu were waiting for Dhakiyarr to return home. Lots of Balumulu people were waiting for him at Roper River, waiting for every vehicle. Those three sons of Wungu, when they got out, they were safe to get home. When Donald Thomson took those three, when they went back. Wungu also asked his sons – they didn't know.
[About the Wukidi reconciliation ceremony in Darwin, June 2003.]
That's when we asked for a real reconciliation with the McColl family. It's happening now. They [the modern day McColl family] help us, paint all our rooms, made us a cupboard, show us how to make a fence. About 10 of them. Working closely together.
They all went back red from mosquito.
So how we going to find out that truth now? Where is he now?
We don't know.
We don't know.
Only God knows.
[Is he resting in peace?]
Yes. Which area he is now, he rests in peace. All the ceremony that he left, behind, it's in our hands.
[On McColl's grave]
We want it to say, 'Killed by Dhakiyarr', not 'an Aborigine'.