Tuckiar v The King [1934] HCA 49

Between

Tuckiar (Appellant) and The King (Respondent)

Judges 

Gavin Duffy C.J., Starke, Dixon, Evatt and McTiernan J

Judgment

In this appeal from a decision of the Supreme Court of the Northern Territory, the High Court unanimously quashed Dhakiyarr Wirrpanda's (Tuckiar's) conviction for the 1933 murder of Constable Albert McColl [335]. Their Honours based their decision on their finding that both Justice Wells (Egan, 1996) and counsel for the defence had deprived Tuckiar of a fair trial.

Together, Gavan Duffy CJ, Dixon, Evatt, and McTiernan JJ held that Justice Wells's comment that the jury should infer what they like from Wirrpanda having chosen not to speak in his own defence in Court was on its own sufficient to render the conviction bad. Further to that, based on the available evidence, counsel for the defence had had a duty to advocate for a finding of manslaughter or complete acquittal [335].

Starke J, in a separate judgment, held that the charge as given to the jury denied the accused a fair trial [335].

Their Honours were unanimous in holding that counsel for the defence's comments to the Court following conviction involved privileged information from his client that he should not have shared [335]. 

The only evidence connecting Wirrpanda with the killing of Constable McColl were statements he had made to two local Yolngu men [349]. Those two accounts were translated by a local Aboriginal man (referred to as Paddy) who was assisting the police. The two statements differed significantly in their portrayal of the events [349]. 

What happened to Tuckiar

Wirrpanda disappeared shortly after he was released from custody, and historian Henry Reynolds recorded that it was 'widely believed in Darwin that he was shot by police and his body dumped in the harbour' (Waterford, 2007).

Significance

Tuckiar v The King ('Tuckiar') was the first case of an Aboriginal person to reach the High Court of Australia (Edeny, 2006) and offered the Court an unprecedented opportunity to establish that Aboriginal and Torres Strait Islander people were to be afforded due process under the law in criminal cases.

Tuckiar continues to be cited in case law regarding the duty of confidentiality that counsel owes to their client (Waterford, 2007).

For example, in Mokbel v Director of Public Prosecutions (Cth) [2021] VSCA 94, Tuckiar was referenced to assess the possibility of both an acquittal [21] and the likelihood of a fair retrial following the publicity surrounding the conduct of Victoria Police and Mokbel's counsel, Ms Gobbo [33-34]. 

Academic commentary

Tuckiar has been referred to as a landmark decision in Australian legal history, it being the first time a conviction was quashed with an acquittal on account of the potential prejudicial effect of pretrial publicity about a case (Burgess, 63, 66).

A.P Elkin drew on Tuckiar as being one of the best examples of how 'fear' and 'worry' can operate to impact the evidence given by Aboriginal people at trial, which possibly resulted in the inconsistencies between the witness accounts (Elkin, 181-182). Exploring the complex position of Aboriginal witnesses in cases such as Tuckiar, Elkin emphasised the necessity of trying cases as closely as possible to where the relevant crime occurred, both for clarity of translation and so that witnesses are not removed from their country and imprisoned (Elkin, 198). 

Richard Edeny, in 2006, writes that despite 'Indigenous overrepresentation at all stages of the criminal justice systems of Australia', the High Court has not closely examined the relationship between Aboriginality and sentencing, with Tuckiar being a rare exception (Edeny, 101). 

Subsequent developments

In 2003, the family of Wirrpanda held a ceremony at the Northern Territory Supreme Court in order to 'guide his spirit's return to his ancestral land' and 'heal the wounds caused by this tragedy' (Multicultural Council of the NT, 2003). Wirrpanda's descendants and family were joined by the Chief Minister of the Northern Territory, Clare Martin, judges from the Supreme Court and the High Court of Australia, and 30 members of the McColl family (Screen Australia, 2014). 

In 2004, the case was the subject of a documentary film entitled Dhakiyarr v The King, directed by Tom Murray and Allan Collins (Edwards, 2005). 

Background

Dhakiyarr Wirrpanda was a Yolngu elder from Caledon Bay in North-East Arnhem Land (Read, 2006). He lived a largely traditional lifestyle without much interaction with non-Aboriginal Australians (Waterford, 2007). At his trial at Darwin, he understood no English [341]. 

There are various accounts of the events preceding the case, including the two translated witness statements used at trial.

What both witness statements agree on is that following the murder of three Japanese trepang fishermen as well as the earlier disappearance of two white men in Caledon Bay (Read, 2006), a group of police officers including Constable McColl went in search of Wirrpanda and two other men who they believed to be accomplices in the murders of the trepang fishermen and possibly the missing white men [348]. In the process of this search the officers came across, captured, and handcuffed a group of Yolngu women, including Wirrpanda's wife [348]. Having brought one of the women into the bush where Wirrpanda was hiding, McColl fired three shots, including one misfire, and was killed by Wirrpanda's spear, which was later found next to McColl's body [349].

The sequence of the spearing and shooting varies between witness statements. 

Legislative Background

The relevant criminal code in force in the Northern Territory at the time was the Accused Persons' Evidence Act (No 245 of 45 and 46 Vic, 1882). Particular focus was given to Section 1 of that Act, which stipulates that while the accused may give evidence on their own behalf, there shall be no presumption of guilt arising from a defendant electing to not give evidence at trial. 

Litigation History

Tuckiar v The King was an appeal from the Northern Territory Supreme Court, where Wirrpanda was found guilty of the murder of Constable McColl and sentenced to death. 

The conviction at trial had relied on the telling of two confessions made by Wirrpanda in the statements of two Yolngu men, referred to as Harry and Parriner [340]. While both statements depicted the same series of events, Harry's statement described Constable McColl as having sexually assaulted the Yolngu woman he was holding captive near to where the police party had set up camp [341]. In Harry's account, Constable McColl fired at Wirrpanda three times before reloading, at which point Wirrpanda threw a spear that struck and killed McColl [341]. In contrast, Parriner's statement describes Wirrpanda as having thrown his spear while McColl was in the bush with one of the women, after which the mortally wounded McColl fired three shots immediately before dying [340]. 

Parriner's statement was given first. Wells J then asked Counsel for the defence if he had discussed the evidence with his client and whether he thought it proper that he do so [341]. Counsel replied that he had not, but thought that it would be good to do so, and Wells J arranged for the translator, Paddy, to join counsel and Wirrpanda to discuss the evidence [341]. Upon returning, Harry gave his statement but before cross-examining him, counsel for the defence said he needed to speak with the Judge because he was in 'the worst predicament that he had encountered in all his legal career' [341]. Justice Wells, counsel for the defence, and the Protector of Aborigines then all went into the Judge's chambers for discussion [341]. 

On their return, the jury heard a statement for McColl as to his good character, which was inadmissible but no objection was made to it [341]. The jury, who had heard much discussion about the failure of the prosecution to bring witnesses to Darwin, then asked what their position should be if they were satisfied that there is not enough evidence to convict [341-342]. In response, Wells J encouraged the jury to not be influenced by the perception that 'the Crown [had] not done its duty' [341-342]. His Honour emphasised that a verdict of not guilty would mean that Wirrpanda could not be retried, and could amount to a 'grave miscarriage of justice' [342]. His Honour also warned that a verdict of not guilty would be a 'serious slander on' the deceased McColl [342]. Wells J also told the jury that Harry's version of events was 'so utterly ridiculous as to be an obvious fabrication' [343], while Parriner's statement was 'highly probable' [343] 

Wells J then told the jury that they were entitled to take into consideration the fact that Wirrpanda did not speak in his own defence, and that they could 'draw from [that] any inference [they] like' [343].

Following the jury's finding of guilt, counsel for the defence stated in court that when he had been excused to discuss the evidence with Wirrpanda and Paddy, Wirrpanda had told him that Parriner's version of events was true, and that Wirrpanda had lied to Harry [343-4]. This discussion had inspired counsel's request to discuss his 'predicament' with Judge Wells. Wells J then pronounced a sentence of death [344]. 

Details of Judgment

The primary focus of the High Court case was the conduct of Justice Wells and defence counsel in the Supreme Court. 

Judgments of Gavan Duffy C.J., Dixon, Evatt and McTiernan J

In their collective judgment, the four justices primarily addressed the comments made by the defence counsel and judge at trial, concluding that not only did Wells J's comments alone render the verdict bad, but that further trial would be impossible in this context, particularly following defence counsel's statements made after conviction. 

Their Honours denounced Wells J's comments regarding Wirrpanda's failure to give evidence as a 'misdirection... calculated to gravely prejudice the prisoner' [344], citing Section 1 of Accused Persons' Evidence Act (No 245 of 45 and 46 Vic, 1882). They noted the 'spectacle' [344] of counsel's exchange with Wells J prior to and following him having discussed the witness evidence with Wirrpanda. Their Honours considered the impression that this exchange would have had on the jury, considering that Wells J followed this with the direction to take into account that Wirrpanda did not give evidence in his own defence [345]. Their Honours concluded that this impression was 'likely to reinforce' 'a presumption of guilt' [345]. 

Their Honours noted that the evidence as to McColl's good character, although not objected to, should not have been allowed [345], and that 'the purpose of the trial was not to vindicate the deceased constable' [345].  Similarly, their Honours emphasised the 'paramount duty' [346] of counsel to both the court and his client, labelling his disclosure as 'wholly indefensible', in that it did not allow Wirrpanda to benefit from potential arguments in his favour, which reasonably arose from the available evidence [346]. 

Their Honours considered the possibility of a new trial, and found that defence counsel's public comments following conviction made a new trial 'certainly a futility' [347]. 

Justice Starke

In his judgment, Justice Starke similarly found in favour of the appellant. His judgment focussed instead on the charge. His Honour suggested that while Wells J carefully explained the elements of a murder charge and how Parriner's statement supported this [351], charges of manslaughter or provocation were ignored [351]. He noted that the 'case against the prisoner was too forcibly stated' while other aspects of the case were 'overlooked' [351]. He condemned Justice Wells's statements regarding the accuracy of the witness statements as 'not right' [351]. 

Justice Starke also acknowledged the illegality of McColl and the police party having captured and handcuffed the Yolngu women [352]. Starke J noted that Wells J, in instructing the jury, failed to 'suggest' 'the possible effect' of the capture on Wirrpanda, as an act of 'defence' against a perceived 'attack' [352]. His Honour commented that while a finding of not guilty or of manslaughter was open to the jury on the evidence, Wells J was 'silent' on this, 'practically invit[ing] the jury to find a verdict of guilty' [352]. 

Justice Starke, in contrast to his learned fellows, characterised both Wells J's comment on Wirrpanda's failure to give evidence and the wrongful inclusion of the character statements as being of 'minor importance' [352].

Starke J acknowledged that while inadmissible, the character evidence did not cause a substantial miscarriage of justice [353]. His Honour acknowledged that Wells J had contravened Section 1 of Accused Persons' Evidence Act (No 245 of 45 and 46 Vic, 1882) in his comments about Wirrpanda not giving evidence [353], but noted that this comment was not likely to have caused a miscarriage of justice [354].

Justice Starke emphasised that the reasons for the 'seriously miscarried' trial went deeper than the acknowledged 'irregularities' [354] and focussed instead on the defence counsel's 'grave breach' in his comments made previous to and following conviction [354].

Justice Starke agreed with Wells J's comments regarding the 'impossib[ility]' of a new trial [355]. 

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References